Enplug, Inc. (“ENPLUG”) provides software as a service for the streaming of digital signage content (the “Software”). Pursuant to the terms of this USER Agreement (this “Agreement”), ENPLUG is licensing the Software to USER in the form of a license.
ENPLUG hereby grants USER and its End Users a limited, non-exclusive, non-transferable, non-assignable right to use the Software subject to all the terms and conditions of this Agreement “End User” means an individual employee, consultant, contractor, or agent of USER or an affiliate who has been authorized by USER to use the Software on behalf of USER and its affiliates. USER shall be responsible for acts, omissions or breaches hereunder by any End Users. All rights not expressly granted to USER and End Users are reserved by ENPLUG and its licensors. USER shall not:
For purposes of this Agreement, “Content” means the audio and visual information, graphics, text, images, music, software and documents made available by ENGPLUG in the course of using the Software. Software shall include all updates, modification and enhancements to the same so long as the USER is current with its licensing fees and payments.
USER has not and will falsely identify itself nor provide any false information to gain access to the Software. USER shall: (i) notify ENPLUG immediately of any unauthorized use of any password or account or any other known breach of security with respect to such passwords and accounts; (ii) report to ENPLUG immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by USER; and (iii) not impersonate another user or provide false identity information to gain access to or use the Software.
Fees for the Software are set forth on the ENPLUG website or as agreed to by the parties in a written agreement or Purchase Order. USER is responsible for paying for all specified fees and agrees to pay ENPLUG per written agreement. ENPLUG reserves the right to modify its fees and charges and introduce new charges at any time; however such fee changes will not apply during the current Agreement term. All fees are exclusive of any applicable federal or state sales or use taxes. USER is solely responsible for paying all such taxes and government charges. In the event USER has ordered any equipment, USER agrees to pay all equipment related fees as agreed to by the parties. USER’s failure to pay any outstanding balance within on the applicable due date may result in the immediate suspension of ENPLUG Software and services and deactivation within twenty four (24) hours until such outstanding balance is paid in full. To the fullest extent permitted by law, except as set forth in this Agreement, refunds (if any) are solely at the discretion of ENPLUG. Nothing in this Agreement requires ENPLUG to extend credit to USER.
USER agrees to provide ENPLUG with complete and accurate billing and contact information and hereby authorizes ENPLUG to bill fees and other charges to USER. USER agrees to update all billing and contact information. USER represents and warrants to ENPLUG that any credit card provided to ENPLUG is authorized by such USER individually or by USER’s company for use by ENPLUG as provided herein and will not be rejected. If ENPLUG is unable for any reason to bill or process any charges, ENPLUG will take commercially reasonable efforts to contact you by email and notify you to provide another payment method to ENPLUG. If any credit card, billing or contact information provided by any USER is false or fraudulent, ENPLUG, in addition to any remedies available by law, reserves the right to immediately terminate your access to the Software.
This Agreement will be effective upon written or verbal consent by USER to commence use of ENPLUG software and will continue for so long as there is an order form or other ordering document for the Software in effect. Termination.
Either party may terminate this Agreement or any order form immediately (i) in the event of a material breach of this Agreement that is not cured within thirty (30) days of receipt of written notice thereof from the other party, or (ii) if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding that is not dismissed within sixty (60) days of filing.
Refund or Payment upon Termination. In the event of termination for USER’s material breach in accordance with Section 1, USER will pay ENGPLUG all outstanding fees due under any terminated order form(s) for the entire subscription period set forth therein. For annual software subscriptions, a maximum of 6 (six) months will be refunded in event of cancellation. For clarity, termination of this Agreement will terminate all outstanding order forms.
By signing or clicking your consent to this Agreement, USER represents and warrants that it has the legal power and authority to enter into this Agreement (including on behalf of the business entity for whom the signatory is an agent, employee or representative). USER represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Software and that USER’s billing information is complete and accurate.
ENPLUG may, directly or indirectly, through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. You agree that ENPLUG may use such information for any purpose related to any use of the Software by USER, including but not limited to, (i) improving the performance of the Software or developing upgrades; and (ii) verifying compliance with the terms of this Agreement and enforcing ENPLUG’s rights, including all Intellectual Property Rights in and to the Software.
Except as expressly set forth in this agreement, ENPLUG and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of the software or any equipment used in connection with the software. ENPLUG and its licensors do not represent or warrant that (a) the use of the software or equipment will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the software or equipment will meet user’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by user through the software or equipment will meet user’s requirements or expectations, (e) errors or defects will be corrected, (f) the additional costs incurred to use the software or equipment will not exceed a certain amount of money, or (g) the software, equipment or the server(s) that make the software available are free of viruses or other harmful components. The software and equipment is provided to you strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, satisfactory quality, non-infringement or fitness for a particular purpose, and any warranties arising out of any course of dealing or usage of trade, are hereby disclaimed to the maximum extent permitted by applicable law by ENPLUG.
Warranty on the Enplug Device may be found at https://www.enplug.com/warranty
In no event shall ENPLUG’s aggregate liability to USER under this agreement exceed the amounts actually paid by USER during the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall ENPLUG be liable to USER for any use, interruption, delay or inability to use the software.
In no event shall ENPLUG be liable to USER for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with the software or equipment, including but not limited to the use or inability to use the software or equipment, any content obtained from or through the software or equipment, the amount or cost of the data required to use the software or equipment, or any interruption, inaccuracy, error or omission, regardless of cause, even if ENPLUG has been previously advised of the possibility of such damages. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if ENPLUG has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, and to that extent, the exclusions set forth above may not apply to USER.
USER shall defend, indemnify and hold harmless ENPLUG, its officers, directors, shareholders, agents and employees from and against the full amount of any and all Losses (defined below) incurred as a result of (a) USER’s use of the Software, (b) USER’s violation of applicable law, or (c) any actual or alleged death of or injury to any person suffered arising out of USER’s use of the Software, unless caused by ENPLUG’s gross negligence or willful misconduct, provided that ENPLUG (i) promptly gives USER written notice of any claim, (ii) gives USER sole control of the defense and settlement of such claim (provided that USER may not settle or defend any claim unless it unconditionally releases ENPLUG of all liability), and (iii) has not compromised or settled such claim. For purposes of this Agreement, “Losses” means any and all losses, claims, damages, liabilities or actions or proceedings with respect thereto or expenses, including, but not limited to all legal expenses and any and all other expenses incurred in investigating, preparing, serving as a witness in or defending against, any action or proceeding, commenced or threatened, which a party may be subject to (whether or not such party is named as a party) which arise out of or are related to the subject matter of this Agreement.
By using the ENPLUG Software, USER hereby agrees to comply with any and all applicable export laws, restrictions and all regulations of the U.S. Department of Commerce, U.S. Department of Treasury, and any other U.S. or foreign agency or authority with regards to this provision of the Agreement. USER expressly agrees not to export or re-export the Software, nor allow the export or re-export to any country subject to any and all applicable U.S. trade embargoes or to any prohibited destination, in any group specified in the current “Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations).”
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the USER is the US Government or any contractor therefor, USER shall receive only those rights with respect to the Software and documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Each party that receives Confidential Information (a “Recipient”) from the other party (a “Discloser”) agrees not to use any Confidential Information (as defined below) for Recipient’s own use or for any purpose other than to carry out the subject matter of this Agreement. Recipient shall not disclose any Confidential Information of Discloser to third parties. Recipient agrees to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information. Recipient further agrees to notify Discloser in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Discloser’s Confidential Information which may come to Recipient’s attention. “Confidential Information” means any information, technical data or know-how, including, but not limited to, information relating to business and product or service plans, financial projections, customer lists, business forecasts, sales and merchandising, human resources, patents, patent applications, computer object or source code, research, inventions, processes, designs, drawings, engineering, marketing or finance to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information does not include information, technical data or know-how which: (i) is in the possession of Recipient at the time of disclosure, as shown by Recipient’s files and records immediately prior to the time of disclosure; or (ii) becomes part of the public knowledge or literature, not as a direct or indirect result of any improper inaction or action of Recipient.
USER represents, warrants and covenants that USER’s use of the Software and any services will comply with all applicable local, state, federal and foreign laws and regulations (collectively “Applicable Law”), including but not limited to those related to copyright, trademark, data privacy, international communications and the transmission of technical or personal data. USER shall be responsible for determining whether the Software and any services are suitable for USER’s use in light of all such Applicable Law. If USER is subject to any Applicable Law and uses the Software, ENPLUG shall not be liable if the Software doesn’t meet the requirements of Applicable Law.
This Agreement (including any order forms) constitutes the entire understanding and agreement of the parties with respect to is subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties. If any provision of this Agreement shall be found invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the parties. This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto. ENPLUG may use USER’s business name, business address, logos, and other identifying information of the USER in ENPLUG marketing materials including, but not limited to, physical printouts, digital advertising and promotional materials. Except as stated in this Agreement, USER shall have no right to (a) assign this Agreement, by operation of law or otherwise, or (b) subcontract or delegate the performance of its obligations under this Agreement without ENPLUG’s prior written consent which may be withheld by ENPLUG in its sole discretion; provided the USER may assign this Agreement to any affiliate or to a third party who essentially purchases or assumes all the assets of the USER so long as such recipient party agree to honor the terms of this Agreement and is not a competitor of ENPLUG. Any such purported assignment not meeting the terms herein shall be void. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of law principles. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and other expenses. However, in the event of a dispute between the parties hereto with respect to this Agreement, the parties agree to first attempt to resolve the dispute through good faith negotiations of the parties’ business executives. No third party is intended to be, and no third party shall be, a third party beneficiary of this Agreement. The parties hereto are independent contractors and shall not be deemed to be agents, representatives, joint ventures or partners of the other party.