Master Subscription Agreement

If You are a new Subscriber, then this Master Subscription Agreement will be effective as of September 15, 2018. 

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU: IT AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, YOUR AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Us that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber", "Account Owner", "You", “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.

1. Definition of Terms

The following terms have the following meanings:

Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.

Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator or as any other role that is available in or can be configured in the Service, as identified through a unique login.

Agreement: means the Master Subscription Agreement together with any and all Supplements, Additional Terms and Order Forms.

Applicable Law: means the governing law and jurisdiction applied in this Agreement under 13.1

Applications: mean web or other software services or applications developed by You that utilize or interact with the API and are authorized to be Published pursuant to this Agreement.

App Market: means any marketplace or other aggregator or public repository of code or applications.

Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including, without limitation, integrations and applications created or developed by CMS Signage or its Affiliates. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service.
Confidential Information: means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content, Our business and marketing plans, Our technology and technical information, Our product plans and designs; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing). All additional Information disclosed under this confidentiality which is in tangible form and labeled  "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Our security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Support is available on weekdays, excluding holidays, during Our local business hours. Local business hours are from 9 am to 5 pm in applicable time zone.

Notwithstanding the foregoing, Confidential Information shall not include information that

(a) was already known to the receiving Party at the time of disclosure by the disclosing Party;

(b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information;

(c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or

(d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.

Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Us or Our authorized subcontractors as indicated on an Order Form or other written document such as a statement of work ("SOW"), as defined below.

Content: means information obtained by Us from publicly available sources or third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

Contractor: means the party who is Your provider of the Service and sole party of this Agreement other than You.

Directive: means General Data Protection Regulation, GDPR, on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Us to You in the help center(s) or Customer Portal(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).

End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.

Intellectual Property Rights: means any and all existing and future intellectual or industrial property rights in and to any deliverables (whether registered or unregistered) including all existing and future patents, copyrights, design rights, database rights, trade marks, Internet rights/domain names, know how, and any other proprietary rights in or related to the Service(s), including the Websites and the content or material published on it

Internal Use: means the use of the API in connection with Your subscription to a Service for Your internal business purposes in accordance with the Service Agreement.

Marks: mean CMS Signage and other product and service names, trademarks, service marks, branding and logos made available for use in connection with the APIs pursuant to this Agreement.

Marketplace: means the marketplace or other aggregator or public repository of code or applications provided and operated by Us.

Module: means as set of features that can be purchased additionally as a package to enhance the purchased Service or the purchased Service Plan. 

Non-Service Application: means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and inter-operates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as CMS Signage Labs, "Beta" or by a similar designation.

Open Source Software: means any “open source” code (as defined by the Open Source Initiative), “ free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.

Order Form: means any of Our generated service order forms (online or offline) executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.

Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account by You or at Your direction.

Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.

Personnel: means employees and/or non-employee service providers and contractors of the CMS Signage Group engaged by the CMS Signage Group in connection with performance here under.

Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Publish/Published/Publishing: means the making of any Application available to any Subscriber other than You or for any purpose other than for use by You as a Subscriber for Internal Use.

Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”). “Services” exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.

Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.

Service Plan(s): means the packaged service plan(s) and the functionalities and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.

Site: means a website operated by the CMS Signage Group, including www.cmssignage.com, as well as all other websites that the CMS Signage Group operates.

Software: means software provided by Us (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.

Subscriber: means and refers to an individual or an Entity that has agreed to an Agreement for use of our Services.

Subscription Charge: means the amount You have to pay for the Service.

Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.

Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); or (c) applicable to Consulting Services when purchased by You.

CMS Signage: means the company which You are contracting with under this Agreement under 13,1, or any of its successors or assignees.
CMS Signage Group: means Opiekun technologies private limited India together with all its Affiliates including but not limited to the companies in section 13.1.

T&M / Time and Material: development or any other piece of work in which You agree to pay Us based upon the time spent by Our employees or Our subcontractors employees to perform the work, and for materials used in the development, no matter how much work and material is required to complete the development or the work.

Usage Data: means aggregated encoded or anonymized data that the CMS Signage Group may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, and which does not contain Personal Data.

“We,” “Us” or “Our”: means the assigned Contractor defined in section 13.1.

1. Access to and use of the Services

1.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. We will

(a) make the Services and Service Data available to You pursuant to this Agreement;

(b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased;
(c) provide our APIs according to the API Policies We implement in this regard;
(d) provide maintenance, updates or upgrades of the Services. You may not be able to access or use the Service(s)

(i) during planned downtime for updates and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and
(ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).

1.2 For proper transmission of the Services a high speed Internet connection is required.
Your access to and use of the Service(s) may require You to use or maintain specific browser software, security certifications and other procedures that supports protocols used by the Service(s). We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software, protocols or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Us. We assume no responsibility for the reliability or performance of any connections as described in this section.

1.3 You agree not to

(a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement;

(b) use the Services to Process data on behalf of any third party other than Agents or End- Users;

(c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Us or the CMS Signage Group,

(e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights;

(f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicate or unsolicited messages;

(g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights;

(h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components;

(i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services;

(j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory;

(k) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”);

(l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”);

(m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or

(n) attempt to use, or use the Services in violation of this Agreement.

1.4 Service(s) through Your Account in violation of these Terms.

1.5 If We inform You that a specified activity or purpose is prohibited with respect to the Service(s), You will ensure that You immediately cease use of the Service(s) for such prohibited activity or purpose. Your failure to comply is cause for termination of all access to our Service(s), without the right to be compensated for any inability to access the Service(s).

1.6 You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users.

1.7 You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed Services and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service.

1.8 You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.

1.9 In addition to Our rights as set forth in this Agreement, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End- Users.

1.10 You acknowledge that We may modify the features and functionality of the Services during the Subscription Term. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

1.11 You may not access the Services if You are a direct competitor of the CMS Signage Group, or accessing in behave of a competitor except with CMS Signage’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes. You are not allowed to share any kind of Information defined under the INTELLECTUAL PROPERTY RIGHTS or any other information gained through the access to the Service(s) with a competitor or any other provider of similar Services.

1.12 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of

(a) the end of the free trial period for which You registered to use the applicable Service(s);

(b) the start date of any subscription to such Service purchased by You for such Service(s); or

(c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.

ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.

YOU MAY USE A FREE TRIAL FOR EVALUATION PURPOSES ONLY.

2. Intellectual property rights

Except for the rights granted to You under Section 1, all rights of our Intellectual Property Rights shall belong to and remain exclusively with Us. We claim no intellectual property rights over the content You upload or provide to the Service(s).

3. Fees, Payment, Credits

3.1 You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,
(i) fees are based on Services and Content subscriptions purchased and not actual usage,
(ii) payment obligations are non-cancelable and fees paid are non-refundable, and
(iii) quantities purchased cannot be decreased during the relevant subscription term.

3.2 You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 6.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 14 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

3.3 If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies,

(a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or

(b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.2 (Fees and Payment).

3.4 If any amount owed by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, before suspending services to You. 

3.5 We will not exercise Our rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

3.6 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those accessible against the CMS Signage Group measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

3.7 If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service or add Modules that otherwise expand the capabilities of the Services during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and will be due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.

3.8 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and CMS Signage does not accept any liability for such loss.

3.9 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account Owner to change credit card information (e.g. upon card renewal). The Account Owner will receive an invoice upon each receipt of payment by the Payment Agent, or the Account Owner may obtain an invoice from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to the Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize CMS Signage and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.

3.10 Payments made by credit card, debit card or certain other payment instruments for the Service are billed and processed by a Payment Agent. To the extent the Payment Agent is not CMS Signage, the Payment Agent is acting solely as a billing and processing agent for and on behalf of CMS Signage and shall not be construed to be providing the applicable Service.

3.11 We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals. CMS Signage reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by CMS Signage when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.

4. Proprietary rights and licenses 

4.1 You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation. 

4.2 You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-Service Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licencors under this Agreement in or to any of Your Data, Non- Service Application or such program code.

4.3 You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.

 

5. Representations

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

6. Term of Agreement

6.1 This Agreement commences on the date You first accept it and continues until all subscriptions here under have expired or have been terminated.

6.2 The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per- unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

7. Termination and Service Data availability

7.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement,
(a) on or prior to the date thirty (30) days preceding the end of such Subscription Term or
(b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service (including any and all associated Services or Modules) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and associated Services or Modules to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.

7.2 If this Agreement is terminated by Us in accordance with this section. You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

7.3 If this Agreement is terminated by You in accordance with this Section. We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.

7.4 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data and, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.

8. Warranties

8.1 We warrant that during an applicable subscription term
(a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data,
(b) We will not materially decrease the overall security of the Services,
(c) the Services will perform materially in accordance with the applicable Documentation, and (d) We will not materially decrease the overall functionality of the Services.
For any breach of a warranty above, Your exclusive remedies are those described in the section 7 Termination.

8.2 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8.1, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8.3 When using Our API You warrant the following to US:

By using Our APIs with which Your Applications may transmit Service Data outside a Service, You represent and warrant that You have notified all users of such Applications that their Service Data will be transmitted outside the Service and that We are not responsible for the privacy, security or integrity of such Service Data. You further represent and warrant that to the extent Your Applications store, process or transmit Service Data, neither You nor your Application will, without appropriate prior user consent or except to the extent required by applicable law

(a) modify the content of Service Data in a manner that adversely affects the integrity of Service Data;
(b) disclose Service Data to any third party; or
(c) use Service Data for any purpose other than providing the Application functionality to users
of such Application.

You shall maintain and handle all Service Data in accordance with privacy and security measures reasonably adequate to preserve the confidentiality and security of all Service Data and all applicable privacy laws and regulations, and in no event less protective than the measures and policies set forth in the Privacy Policy.

You represent, warrant and covenant that

(a) Your Applications and Your Marks, the use of such Applications by Your users, and the activities with respect to such Applications and Your Marks undertaken by Us in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party;
(b) You will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Applications;
(c) Your Applications do not and will not contain or introduce any Malicious Software into the Service, the API, any Service Data, or other data stored or transmitted using the Service;
(d) Your Applications are not designed to or utilized for the purpose of spamming any Subscribers, Agents or End-Users;
(e) you have all right, power and authority to grant the licenses granted to Us herein; and

 

 

9. Indemnification

9.1 We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any standard functionality of our Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You

(a) promptly give Us written notice of the Claim Against You,

(b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and
(c) give Us all reasonable assistance.

If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You

(i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties above,
(ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions.

 

The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Service Application, custom configuration/processes or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.

9.2 You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We

(a) promptly give You written notice of the Claim Against Us,

(b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and
c) give You all reasonable assistance, at Your expense.

9.3. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.

10. Limitation of Liability

10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE CMS Signage GROUP’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

11. Relationship

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12. Assignment, entire agreement and amendment

12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the CMS Signage Group or in connection with any merger or change of control of CMS Signage or the CMS Signage Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

12.2 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You no less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by CMS Signage as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

12.3 This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

13. Who you are contracting with, notices, governing law and jurisdiction

13.1 Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled. Solely one single Contractor listed below is contracting with You

You are contracting with ("Contractor")	Notices should be addressed to	The governing law is	The courts having exclusive jurisdiction are
Opiekun technologies private limited, India	SR NO-253/2/2 RD NO-1 KHESE PARK, LOHAGAON TQ. HAVELI, PUNE	Indian law	Pune, India.

13.2 Each party agrees to the applicable governing law above without regard to choose or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

13.3 For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. The obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.

13.4 Your rights arising out of this contract or the governing law are solely limited to Us.

14. Delivery and Acceptance

Any Service and Documentation delivered under this Agreement shall be considered accepted by You unless, within ten (10) days after delivery to You, You notify Us that the Service does not execute as specified in the Documentation, with all the necessary details about such a deficiencies. In any such event, We shall have ninety (90) days after such notice and a reproduction(replay) of that deficiencies together with You to make and submit to You such changes of the Service or Documentation as shall be reasonably required to correct the deficiencies in the Service or Documentation, and You shall have a similar period to retest and evaluate the Service and review the Documentation. If the deficiencies have not been corrected within hundred twenty (120) days after the initial delivery date, You may terminate this Agreement with respect to such Service or Documentation.

15. Consulting Service

15.1 If You have engaged Us for the provision of professional services (including any training, success, and implementation services, “Consulting Services”), all Consulting Services pursuant to the Agreement provided by Us to You will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided. You hereby retain Us to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. We shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services

15.2 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Fees charged and the qualified employees and/or non-employee contractors of Ours (“ Subcontractors” and together with Our employees for the purposes of these Supplemental terms, “ Consulting Services Personnel”) employed in performing the Consulting Services. We and You agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.

The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services. Any Subcontractor (defined below) designated by Us to perform any portion of the Consulting Services will designate a representative to interface with You and Us on all matters relating to the Subcontractor’s performance of Consulting Services (“Subcontractor’ s Representative”).

15.3 We will perform the Consulting Services, directly or through a Subcontractor of Our choice. You agree to provide, at no cost to Us, timely and adequate assistance and other resources reasonably requested by Us to enable the performance of the Consulting Services (collectively, “Assistance”). Neither We, nor Our Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of You, including but not limited to, Your failure to provide Assistance as required here under.

15.4 In performing the Consulting Services, We will provide such resources, and utilize Consulting Services Personnel as We deem necessary to perform the Consulting Services or any portion thereof. You may object to Our election of Subcontractors by specifying its objection to Us, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. We may replace Consulting Services Personnel in its normal course of business, provided that We will be responsible for the performance of Consulting Services by all Consulting Services Personnel.

15.5 We will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services.

15.6 With Your approval, We may enter (“assume into”) a Subscriber’s Account as needed to provide the Consulting Services.

15.7 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below).

Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Us and the CMS Signage Group all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Us and the CMS Signage Group a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, We and the CMS Signage Group shall have a perpetual, irrevocable, non- exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback CMS Signage Group receives from Subscriber.

15.8 Without limiting the foregoing, We and the CMS Signage Group and its licensors reserve and retain ownership of all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and We and the CMS Signage Group hereby grant to Subscriber a non-exclusive, fully-paid, limited license to use Preexisting Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Preexisting Technology” means all of CMS Signage Group’s inventions (including those of CMS Signage’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts.

15.9 In the event that You seek to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Us. If We elect to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. We shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. We shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.

15.10 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, We shall provide You with written notice (“ Completion Notice”). Thereafter, You shall have five (5) working days after the date of the Completion Notice to provide Us with written notice describing any deliverables that have not been provided or milestones not met("Nonconformity"). The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.

15.11 If You notify Us in writing of a Nonconformity of a deliverable under a SOW, We shall, at its expense, promptly correct such Nonconformity, whereupon We shall receive an additional period of time specified in the applicable SOW or, if not specified or agreed otherwise, a thirty (30) working day period ("Verification Period") commencing upon Your receipt of the corrected Consulting Services to verify that the previously reported nonconformity has been corrected. You shall provide Us with reasonable assistance required by Us to verify the existence of and correct a reported nonconformity. Our Consulting Services shall be deemed automatically accepted by You upon five (5) working days after receipt by You of an Consulting Services unless You notify Us of a Nonconformity as provided above, in which case Our Consulting Services shall be deemed accepted upon expiration of the Verification Period following completion of the last reported nonconformity.

15.12 Our employees may perform Services on Our behalf at Your facilities. You shall provide such facilities as We may reasonably require to fulfill the responsibilities specified in the applicable Statement of Work. Each Statement of Work will specify in reasonable detail the specific support and facilities required for a project, impact of not providing such facilities, and any charges to be incurred by Us. While on Your premises, Our employees shall adhere to all Your rules and regulations identified to Us. Where applicable, Our employees will be provided with suitable identification to obtain access to appropriate areas and shall be entitled to use of such parking and other of Your facilities as necessary. Conversely, if Your employees are required to work at Our facilities, while they are on any of Our premises they shall adhere to all Our rules and regulations identified to You. Where applicable, Your employees will be provided with suitable identification to obtain access to appropriate areas.

Our employees may be given access to one or more of Your computer based information resources ("Your Computer System(s)") under this Agreement. Our employees will use Your Computer System(s) only for the purpose of providing Service as specified in the appropriate Statements of Work. They will not use Your Computer System(s) for any other purpose, including recreational purposes, and will not attempt to access information or systems for which We have no written authorization.

15.13 You will pay Us the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Fees”).

15.14 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. For avoidance of doubt, the acceptance of Service(s) and Documentation above are independent from the acceptance of the Consulting Services described in this section.

15.15 We will make a reasonable effort to notify You as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, You will assess, and accept or reject the amended T&M Estimate. Unless You reject such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by You and You shall be liable for all Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by You shall be deemed a Change Order.

15.16 The performance of Consulting Services may be subject to a retainer to be paid in advance by You upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by You. We may refuse to perform Consulting Services unless and until such retainer is paid to Us.

15.17 In addition to any and all Fees, You will reimburse Us for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Your request, incurred by Us in connection with providing the Consulting Services (“Expenses”). We will provide reasonable documentation for all Expenses as requested by You. You shall reimburse Us for Expenses within thirty (30) days of submission of the Expenses to You by Us.

15.18 Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.

15.19 Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Fees paid and reserved date(s).

15.20 CUSTOMIZED DELIVERABLES, SUCH AS, BUT NOT LIMITED TO, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE CMS Signage SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO YOU “AS IS” AND CMS Signage OR WE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO YOU OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. WE SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT YOU MODIFY ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY US. WE DO NOT WARRANT THAT YOU OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. WE EXPRESSLY DISCLAIM ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY CMS Signage OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO YOU AND ANY THIRD PARTY’S USE OF THE SERVICES.

17. Privacy-Policy, Protection of Your Service-Data, External-Facing Services

17.1 You agree and acknowledge Our Privacy Policy available here (“Privacy-Policy”)

17.2 If You subscribe to a Service for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, such use is subject to Privacy Policy as may be applicable to a Service, and You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.

17.3 Where Your use of the Service(s) includes the processing of personal data (as described in the EU General Data Protection Regulation, GDPR) within the European Economic Area (EEA), except in respect of any usage during a Free Trial, the terms of the data processing addendum at http://www.cmssignage.com/legal/dpa (“DPA”) shall apply to such processing, and are hereby incorporated by reference. For the purposes of the DPA, You are the data exporter, and Your acceptance of this Agreement shall be treated as Your signature of the DPA and appendices.

17.4 The CMS Signage Group will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data” attached hereto.

17.5 To the extent Service Data constitutes Personal Data, You and the CMS Signage Group hereby agree that You shall be deemed to be the data controller and the relevant entity in the CMS Signage Group Party shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). Unless otherwise specifically agreed to by CMS Signage, Service Data may be hosted by the CMS Signage Group or their respective authorized third-party service providers in the United States, the European Economic Area or other locations around the world. In providing the Services, CMS Signage will engage entities within the CMS Signage Group and other authorized service providers, to process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area, the United States and in other countries and territories. Under no circumstances will any entity in the CMS Signage Group be deemed a data controller with respect to Service Data.

17.6 If Your principal location is in the EEA, We will ensure that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if the non-EEA country in question ensures an adequate level of data protection; (b) permitted by the Directive ; or (c) the transfer is via any legal frameworks like the EU-US Privacy Shield. Upon Your request and subject to Your entry into CMS Signage’s Data Processing Agreement (“DPA”) We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, “Model Clauses”), which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing Your request to Us at legal@cmssignage.com.

17.7 You agree that the CMS Signage Group and the third-party service providers that are utilized by the CMS Signage Group to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the CMS Signage Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 20; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 17.6.

17.8 CMS Signage may also obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services. For example, We may have access to certain information from a third party social media or authentication service if You log into Our Services through such service or otherwise provide Us with access to information from such service. Any access that We may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a third party service, You authorize Us to access and store Your name, email address(es), current city, profile picture URL, and other Personal Data that the third party service makes available to Us, and to use and disclose it in accordance with this Agreement.

17.9 If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services are governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Other Services. We cannot guarantee the continued availability of such Other Service features, and may cease enabling access to them without entitling You to any refund, credit, or other compensation, if, for example and without limitation, the provider of an Other Service ceases to make the Other Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against CMS Signage Group with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting CMS Signage to disclose Your Login, as well as Service Data as necessary to facilitate the use or enablement of such Other Services.

18. Removal of Content and Non-Service Applications

If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Service Application hosted on a Service by You may violate Our Privacy Services or applicable law or third- party rights, We may so notify You and in such event You will promptly disable such Non-Service Application or modify the Non-Service Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Service Application until the potential violation is resolved.

19. Dispute Resolution Procedure

If in the opinion of either Party, the other Party has failed to comply with the requirements of this Agreement, or to perform its obligations in a satisfactory manner, then the first Party may invoke this dispute resolution procedure. To expedite the prompt resolution of any disputes which may arise here under, both Parties agree that this dispute resolution procedure will be employed prior to either Party availing itself of any legal remedies (except for injunctive relief and the exercise of the right to terminate this Agreement) against the other Party.
The aggrieved Party will provide the other Party with a dispute notice, and the dispute will be referred to the "Initial Level" representatives, to be identified at a later date.
If a dispute has not been resolved at the Initial Level or a corrective plan of action has not been mutually agreed upon within thirty (30) calendar days of the giving of the dispute notice, then either Party may escalate the dispute to the "Final Level" representatives, to be identified at a later date, by means of a written notice of escalation to the other Party.
The Final Level representatives agree to use all reasonable efforts to meet within ninety (90) calendar days to resolve the dispute. During the Final Level the failing Party can request a mediation on his own costs and the other Party shall agree on this.

If the dispute has not been resolved or a corrective plan of action has not been agreed upon within sixty (60) days of the meeting or within ninety (90) days of the date of the notice of escalation to the Final Level and if initiated mediation fails, then either Party may pursue any remedy otherwise available to it under law or this Agreement.
A Party availing itself of any legal remedies without following this described dispute resolution procedure, shall indemnify the other Party from any legal expenses without the limitations in section 31.
This dispute resolution procedure shall not be applicable for any payment or delayed payment disputes initiated by Us against by You.

20. Confidentiality

20.1 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to

(i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and
(ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Service Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.

20.2 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

20.3 Upon Discloser's written request, Receiving Party shall take commercially reasonable  effort sto return or destroy all Confidential Information received here under, except that Receiving Party may retain a copy of such Confidential Information for archival purposes.

21. Anti-corruption

You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@cmssignage.com.

22. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

23. Federal Government end use provisions

If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.

24. Waiver

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

25. Survival

Those rights and obligations which by their nature are intended to survive the expiration or earlier termination of this Agreement will survive, including without limiting the foregoing following provisions: section 20

26. Waiver of Jury Trial under US Law

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

27. Conflicts in documentation

In case of any conflicts on the same subject between this Agreement and any prior agreements, purchase orders, acceptances, correspondence and other documents forming part of any order for Our Service placed by or for You and accepted by Us during the Term, this Agreement shall govern and prevail, and the conflicting terms and conditions of any such documents shall be deemed deleted and shall not be binding upon either Party insofar as they relate to this Agreement. In the event of a conflict, the following order of precedence shall govern: (i) Amendments, (ii) this Agreement, (iii) Appendices, and (iv) purchase orders accepted under this Agreement.

28. Section Headings

The captions used herein are for convenience only, and will not be deemed to constitute integral provisions of this Agreement.

29. Approvals

Where agreement, approval, acceptance, consent or similar action by You or Us is required, such action shall not be unreasonably delayed or withheld.

30. Force Majeure

Except for payment, neither Party will be held liable for failure to perform any obligations or for delay in performance resulting from any act of God; act of civil or military authority, act of war whether declared or undeclared; act (including delay, failure to act, or priority) of any governmental authority; civil disturbance; strike or other labor difficulty; embargo; delay in transportation; or any other failure or delay beyond such Party's reasonable control. In the event of a delay m performance excusable under this Article, the time for performance of the scheduled action will be extended by a period of time reasonably necessary to overcome the effect of the delay.

31. Attorney’s fees

In the event legal action is necessary to enforce any of the terms in section 1.3, section 8.3, section 16 or the payment terms of this Agreement, We shall be entitled to  collect from the You any judgment or settlement sums due plus reasonable attorney’s fees, court costs and other expenses incurred by the Us for such collection action and, in  addition, the reasonable value of the Our time and  expenses spent for such collection action, computed according to the Our  prevailing fee schedule and expense policies, without any limitation of the total costs. In all other events of any litigation arising from or related to this Agreement (other than section 1.3, section 16 or payments), or the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorney’s fees, and all other related expenses incurred in such litigation limited by 500.000 USD in total per case. In the event of a no-adjudicative settlement of litigation between the parties or a resolution of a dispute by arbitration, the term “prevailing party” shall be determined by that process.

32. Information and advertisement

From time to time We will inform You about our services through different channels like email or web. You agree to retrieve information's and advertisements about our services.

33. Customer Reference

We may refer to You as a customer in sales presentations, marketing vehicles and activities, without Your prior written consent.

Supplemental Terms and Conditions

SECTION 1: SERVICE-SPECIFIC TERMS

Supplemental Terms for how we protect Service Data

The CMS Signage Group is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary.

COUNTRY-SPECIFIC TERMS

The following terms are country-specific and are limited only the that country.

Japan: You agree that You are responsible for notifying the End-Users using Our Services via Your Account about how the CMS Signage Group may use End-Users’ Personal Data as described in the Agreement and obtaining prior consent from End-Users to disclose their Personal Data to Us.

Security Measures Utilized by Us

As provided for in Section 3.2 of the Agreement, We will abide by these Security Measures to protect Service Data as is reasonably necessary to provide the Services:

1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks and implement preventative technology, as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time operation team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies.

2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies) over the internet, except for certain Other Services that do not support encryption, which You may link to through the Services at Your election.

3. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of Our systems or data.

4. Access Control and Privilege Management. We restrict access to customer production systems to operational personnel. We require such personnel to have unique IDs. These IDs are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our operational personnel are assigned unique keys. Upon termination, these keys are revoked. Access rights and levels are based on Our employees’ job function and role, using the concepts of least privilege and need-to-know to match access privileges to defined responsibilities.

5. Network Management and Security. The data centers utilized by Us maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits.

6. Data Center Environment and Physical Security. The data center environments which are utilized by Us in connection with Our provision of the Service employ the following security measures:

• A security organization responsible for physical security functions 24x7x365.

• Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards.

• N+1 uninterruptible power supply and HVAC systems, backup power generator architecture and advanced fire suppression.

Technical and Organizational Security Measures for Third-Party Service Providers

As provided for in Section 20.5 of the Agreement, any third-party service providers that are utilized by the CMS Signage Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 20.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures:

1. Physical Access Controls. Third-party service providers shall take reasonable measures, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining physical access to data processing systems in which Service Data is Processed.

2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.

3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have privilege of access; and, that Service Data cannot be read, copied, modified or removed without authorization in the course of Processing.

4. Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified or removed without authorization during electronic transmission or transport.

5. Input Controls. Third-party service providers shall take reasonable measures to provide that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service providers is via secure file transfer.

6. Data Protection. Third-party service providers shall take reasonable measures to provide that Service Data is secured to protect against accidental destruction or loss.

7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately.