MEDIA SHUTTLE, TRANSFER API AND FLIGHT PRODUCT LICENSE AGREEMENT (“AGREEMENT”)
BEFORE YOU CLICK ON THE “I AGREE” BUTTON OR USE THE SIGNIANT MEDIA SHUTTLE, TRANSFER API OR FLIGHT PRODUCT (THE “PRODUCT” OR “PRODUCTS”) MADE AVAILABLE TO YOU BY SIGNIANT INC. (“SIGNIANT”), CAREFULLY READ ALL THE FOLLOWING TERMS AND CONDITIONS OF THIS MEDIA SHUTTLE, TRANSFER API AND FLIGHT PRODUCT LICENSE AGREEMENT (THE “AGREEMENT”). IF YOU ARE USING THE PRODUCT(S) FOR THE FIRST TIME, AND YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE PRODUCT(S). IF YOU ARE USING THE PRODUCT(S) AS PART OF AN ORGANIZATION AND ARE THE FIRST MEMBER OF YOUR ORGANIZATION TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU WARRANT AND REPRESENT TO SIGNIANT THAT YOU ARE DULY AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND TO BIND YOUR ORGANIZATION TO ITS TERMS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
BY CLICKING ON THE “I AGREE” BUTTON OR USING THE PRODUCT(S), YOU ARE ACKNOWLEDGING THAT YOU ARE BOUND BY THE TERMS OF THIS AGREEMENT AND ARE ALSO AGREEING THAT THE LICENSE, AND USE OF THE PRODUCT(S) AND RELATED SERVICES SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT. AS USED IN THIS AGREEMENT THE TERM “LICENSEE” REFERS TO (I) YOU OR (II) IF YOU ARE USING THE PRODUCT AS PART OF YOUR ORGANIZATION, YOUR ORGANIZATION AND YOU PERSONALLY AS A MEMBER OF SUCH ORGANIZATION.
THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE IT IS FIRST ACCEPTED OR THE PRODUCT(S) OR RELATED SERVICES ARE USED BY THE LICENSEE. USE OF ANY PRODUCT(S) OR SERVICES BY THE LICENSEE WHILE THIS AGREEMENT IS IN EFFECT SHALL CONSTITUTE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT BY LICENSEE TO THE PURCHASE, LICENSE, AND USE OF ALL OR ANY PART OF SUCH PRODUCT(S) AND RELATED SERVICES.
1. LICENSE GRANT
1.1 Signiant grants to Licensee a terminable, nonexclusive, nontransferable, limited license without the right of sublicense to use the Product during the Term (as defined in Section 4.1 below). Licensee may install and use the object code version of such Product only for the specific Signiant Product ordered, for its internal use at its own facilities, in the number of copies and at the locations as specified in the Ordering Document (as defined in Section 4.1 below), and subject to any other restrictions or limitations specified in the Ordering Document. Licensee is the organization identified in the header of this document and its Affiliates. “Affiliate” means a legal entity which is controlled by or is under common control with the Licensee. Control means (i) beneficial ownership of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities, or (ii) a fifty percent (50%) or greater interest in the profits and capital of a partnership or other business organization without voting securities.
1.2 For users of Signiant Media Shuttle Product only. Licensee may activate Users and Portals as it deems necessary and will be charged for the number of Users and Portals in accordance with its Pricing Plan as defined on the Ordering Document. “User” shall be defined as any one individual and associated email address who, using the Media Shuttle Product, sends one or more files per month and/or who receives more than two files per month. Individually identified Users cannot be shared with any other individual(s) or used as pool or group accounts. “Portal” shall mean a unique, Signiant owned and controlled URL that enables a User or Signiant-authorized entity to interact with other Signiant software to send, submit and share files with other users or Signiant-authorized entities. Each party that is designated by Licensee as a User shall be sent a link and password by the Media Shuttle Product in connection with the use of the Media Shuttle Product (such link and domain name shall be owned by Signiant).
1.3 Signiant hereby advises Licensee and Licensee acknowledges that the Product is protected, among other ways, by federal copyright law and international treaties. The Licensee will not copy the Product except as necessary to read the Product from the media into the memory of a computer solely for the purpose of executing it on a single device. Licensee may create one (1) archival copy of the Product, provided that any copy shall include Signiant’s copyright and other proprietary notices of Signiant and its licensors.
1.4 Licensee may not make any attempt to unlock or bypass any initialization system or system designed to control use, or encryption techniques utilized by the Product. Licensee may not copy, modify, reverse engineer, decompile, disassemble or create derivative works based on the Product or install or use the Product in such manner as to enable the use of unlicensed Signiant Products.
1.5 This Agreement does not grant the Licensee any right, title, or interest in the Product or any domain names which are used by the Products and sent to the Users as links to use the Product. All enhancements, intellectual property rights and/or modifications to the Product will be owned by Signiant or the respective licensor and will be subject to these provisions. Signiant, with reasonable prior notice, will have the right to audit the usage of the Product and Licensee’s compliance with this Agreement. Signiant may use any feedback, comments, or suggestions Licensee sends Signiant or posts in its forums without any obligation to Licensee. Except as expressly permitted herein, Licensee is not granted any rights to use the Signiant trademarks, logos, domain names, or other brand features.
1.6 For users of Signiant Web Transfer API only. Licensee may install the Web Transfer API only on Licensee’s website solely to assist Users in transferring files to Licensee or other Users quickly and securely, and subject to any other restrictions or limitations specified in the Ordering Document. Licensee has no right to, and agrees not to, use or license the Web Transfer API with or to use the Product to create any products or services that competes with Signiant’s Media Shuttle Product or that exists solely for the purpose of providing a technology or service offering for the accelerated movement of files of any type or which does not provide incremental value to Licensee’s existing user experience, service offering, or application. Licensee has no right to repackage, divert, license, sublicense, rent, or resell the Web Transfer API to or for the benefit of any third party.
1.7 Signiant, in its own discretion, may update the Product with upgrades, enhancements and/or fixes. Signiant may provide such updates by automatically updating the Products on the Licensee’s computer or device on which the Product resides.
2. LICENSEE’S OBLIGATIONS
2.1 Licensee will indemnify and hold Signiant and its affiliates, directors, officers, employees and agents (including successors and assigns) harmless against any claim, suit, proceeding or other action arising out of or relating to (i) Licensee’s or a User’s failure to comply with its obligations under this Agreement or (ii) a claim that the any materials or data that Licensee or a User transfers using the Product (“Licensee Content”) infringes any patent, copyright, or trade secret of any third party.
2.2 Licensee is responsible for maintaining and protecting all Licensee Content. Signiant will not be liable for any loss or corruption of Licensee Content, or for any costs or expenses associated with backing up or restoring any Licensee Content.
2.3 The Product is not intended for use by a User under 13 years of age. By agreeing to this Agreement, Licensee is representing to Signiant that each User is over 13 years of age.
2.4 Licensee acknowledges that the Product may transmit Licensee Content to Licensee’s cloud storage provider. SIGNIANT WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR THE ACTIONS OR INACTIONS OF SUCH CLOUD STORAGE PROVIDOR, INCLUDING LOSS OR CORRUPTIONS OF LICENSEE CONTENT, OR FOR ANY COSTS OR EXPENSES ASSOCIATED WITH BACKING UP OR RESTORING ANY LICENSEE CONTENT.
3.1 Licensee shall: (a) not disclose the Proprietary Information to any third party, (b) not use the Proprietary Information in any fashion except for purposes of performing this Agreement, and (c) take steps consistent with its protection of its own confidential and proprietary information (but in no event exercise less than reasonable care) to prevent unauthorized disclosure of the Proprietary Information. For purposes of this Agreement, “Proprietary Information” will include the Product and any and all trade secrets or confidential or proprietary information of Signiant whether disclosed orally or in written form. Licensee agrees to receive and hold in confidence and not disclose to third parties, except as explicitly allowed hereunder, the Proprietary Information.
3.2 Licensee agrees that any breach by it of Section 3.1 may cause Signiant substantial and irreparable harm and, therefore, in the event of any such breach, in addition to other remedies which may be available, Signiant will have the right to seek specific performance and other injunctive and equitable relief. Licensee agrees to immediately notify Signiant of any such unauthorized disclosure once Licensee becomes aware of such disclosure.
3.3 The confidentiality obligations of this section will not apply to information that (i) is or becomes part of the public domain through no act or omission of Licensee, (ii) was in Licensee’s lawful possession prior to the disclosure, (iii) is lawfully obtained from a third party without restriction on disclosure or (iv) is independently developed by Licensee without use of the Proprietary Information.
4. TERM; TERMINATION; SUSPENSION
4.1 Licensee may use the Product during the term specified in the separately executed License Order Schedule(s) or Purchase Order(s) entered into between Signiant and the Licensee for the Product (the “Ordering Document(s)”) which shall automatically renew for periods of one year thereafter (the term specified in the Ordering Document together with each renewal term, the “Term”), unless either party provides written notice of its intent to not renew at least ninety (90) days’ prior to the completion of the then current term.
4.2 The Term may be terminated by Signiant upon notice in the event that Licensee has committed a material breach of this Agreement. Upon termination, Licensee will promptly discontinue use of the Product and destroy all copies of the Product and related materials in its possession or control and, upon request by Signiant, certify to Signiant as to their destruction.
4.3 For users of Signiant Flight Product only. In the event that Licensee fails to make payment to Signiant within fifteen (15) days following the applicable payment due date, Signiant reserves the right to suspend Licensee’s license to use the Product. Signiant will reinstate such license once payment is made in full for all amounts past due.
4.4 The provisions of Sections 1.3, 1.4, 1.5, 2.1, 2.4, 3, 5-7 and 10, 11and 13, will survive expiration or termination.
5. LIMITED WARRANTY; LIMITATION OF LIABILITY
If at any time within the period ending ninety (90) days from the earlier of the date that Licensee first pays for or uses the Product (the “Warranty Period”), the Product substantially fails to perform the functions described in the Product end user documentation made available by Signiant, Licensee will promptly notify Signiant in writing of the alleged noncomformance. Signiant will, at its own cost and expense, and within thirty (30) days of receipt of such written notification, correct such deficiency. Should Signiant fail to correct such nonconformance, Licensee may, as its sole remedy, upon giving Signiant written notice within five (5) days of Signiant’s failure to correct, terminate this Agreement, destroy the copy of such Product in its possession and receive a refund of all the fees paid by Licensee for such Product.
EXCEPT AS SPECIFIED ABOVE, THE PRODUCT IS PROVIDED “AS IS”, AT LICENSEE’S OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. SIGNIANT ALSO DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Signiant will have no responsibility for any harm to Licensee’s computer system, loss or corruption of data, or other harm that results from Licensee’s access to or use of the Product.
IN NO EVENT WILL EITHER PARTY, its affiliates, directors, officers, employees and agents (including successors and assigns) OR ANY LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR FOR ANY OTHER INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 2 HEREIN OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3 HEREIN, NEITHER PARTY, its affiliates, directors, officers, employees and agents (including successors and assigns) WILL BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE IN THE PREVIOUS 12 MONTHS PURSUANT TO THE APPLICABLE EXHIBIT FOR THE SOFTWARE, SERVICES OR WORK WHICH GAVE RISE TO SUCH DAMAGES. NO ACTION OR CLAIM MAY BE INSTITUTED MORE THAN 12 MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM.
6. STATISTICAL USAGE DATA
Signiant collects usage information from Licensee’s and/or the Users use of the Product. Licensee acknowledges and agrees that Signiant shall have the unrestricted right to use such data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Product and services, and make any such information publicly available, provided that such information does not identify Licensee or its Users, incorporate customer data, file-names or content transmitted by User(s). Signiant retains all intellectual property rights to such statistical information.
7. ACCESS OF USER INFORMATION
7.1 Licensee acknowledges consents and agrees that Signiant may access, and preserve the information provided by Licensee and/or each User during the registration process and any other information Licensee or a User provides to Signiant for the sole purpose of providing the Product and services to Licensee. Signiant may disclose such information only if required to do so by law.
7.2 For users of Signiant Media Shuttle Product only. Licensee acknowledges and agrees that certain information it and its Users shares with Signiant (such as information Licensee provides during the registration process), including Licensee’s or a User’s name, company, location, and domain part of their email addresses, may be shared and viewed by other users of the Product solely as the result of a user to user interaction (i.e. file transfer) initiated by a Licensee User.
7.3 SIGNIANT IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION LICENSEE OR A USER PROVIDES AS PART OF THE REGISTRATION PROCESS OR WHICH LICENSEE PROVIDES TO OTHER USERS.
7.5 For users of Signiant Flight and the cloud object storage feature of Media Shuttle Product only. Licensee shall provide Signiant with Licensee’s cloud storage provider credentials which Signiant shall use for the sole purpose of providing the Product and services to Licensee. Signiant represents that such credentials (i) shall not be retained by Signiant after the term of this Agreement and (ii) shall be kept confidential by Signiant.
8. ATTRIBUTION For users of Signiant Transfer API Product only.
Licensee shall prominently display the phrase Powered by Signiant™ on its website, displayed either on Licensee’s home page or on a page on which the end-user interacts with Licensee’s application and initiates a file transfer. The font size shall be equivalent to that most commonly used on the relevant page or 12 point font, whichever is larger, and must be legible to the average viewer or reader.
Provided that Licensee is in compliance with this Agreement and the applicable Ordering Document, Licensee will be entitled to receive customer support and Upgrades of the Product in accordance with Signiant’s customer support practices. “Upgrades“ include releases, modifications, refinements and updates to, and new versions of, the Product provided to Signiant’s general client base at no additional charge, but does not include Product marketed by Signiant as a separate product or as a module for which additional fees are generally charged. Licensee may order additional support and other services under this Agreement.
10. THIRD PARTY SOFTWARE
Licensee acknowledges that the Product(s) may contain or be accompanied by certain third party software products (“Third-Party Products”). These Third Party Products, if any, are identified in the Third Party Product packaging and may be subject to special license notices, terms and/or conditions as set forth in the Third Party Product packaging and/or in the “notices.txt” file accompanying the Product (“Third-Party Notices”). The Third-Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between the Third-Party Notices and the other portions of this Agreement, the Third-Party Notices will take precedence (but solely with respect to the Third-Party Products to which the Third-Party Notices relate).
11. EXPORT REGULATION.
Licensee acknowledges that the Product and related technical data and services (collectively “Controlled Technology”) are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Licensee agrees to comply with all relevant laws and will not to export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Signiant products, including the Controlled Technology are prohibited for export or re-export to Crimea Region of Ukraine, Cuba, North Korea, Iran, Syria and Sudan and to any country or region subject to relevant trade sanctions.
12. PRODUCT EVALUATION
Notwithstanding anything herein to the contrary, if the Product is provided to Licensee for evaluation purposes, the following terms and conditions in this Section 12 shall apply. Signiant grants to Licensee a nonexclusive, temporary, royalty-free, non-assignable license to use the Product solely for internal non-production evaluation. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Product or (ii) sixty (60) days from the date of Licensee’s initial installation of the Product, if no such evaluation period is pre-determined in the Product (“Evaluation Period”). The Product may not be transferred and is provided “AS IS” without warranty of any kind. Licensee is solely responsible for taking appropriate measures to back up Licensee’s system and take other measures to prevent any loss of files or data. The Product may contain an automatic disabling mechanism that prevents its use after expiration of the Evaluation Period. Upon expiration of the Evaluation Period, Licensee will cease use of the Product and destroy all copies of the Product. All other terms and conditions of this License Agreement shall otherwise apply to Licensee’s evaluation of the Product as permitted herein.
The relationship of Signiant to Licensee is that of an independent contractor and neither this Agreement, nor the services to be rendered hereunder will for any purpose whatsoever (i) create an employer-employee relationship between Signiant or its employees or subcontractors and Licensee, or (ii) make Signiant an agent of Licensee. In the event of a conflict between an Exhibit and this Agreement, the terms and conditions of this Agreement will govern. Neither party may assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent, except that no consent shall be required for an assignment of this Agreement by either party pursuant to a change of control or a merger or sale of substantially all of a party’s assets or outstanding stock. A waiver of any breach(es) will not constitute a waiver of any future breach(es) of a similar or different nature. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A, excluding all choice of law provisions. The United Nations Convention on Contracts for International Sale of Goods is specifically excluded. All proceedings relating to or arising out of the subject matter hereof will be maintained exclusively in the courts situated in Boston, Massachusetts, U.S.A. and the parties hereby consent to personal jurisdiction and venue therein and hereby waive any right to object to personal jurisdiction or venue therein. This Agreement supersedes all other agreements, proposals, representations and other understandings regarding the Product and the Work, whether oral or written. The terms and conditions of any purchase order or other instrument issued by Licensee or its agent in connection with this Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement are null and void and will not be binding on Signiant. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth at the beginning of this Agreement. Either party may change its address by giving written notice of such change to the other party. Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties authorized signatories. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference. Signiant and Licensee hereby acknowledge and agree that any provisions of any state law adopting exactly or in modified form the Uniform Computer Information Transactions Act (“UCITA”) will not be applicable to this Agreement. Furthermore, both Signiant and Licensee waive any and all rights arising from any such law.
This Agreement may be executed in counterparts and delivered by facsimile, each of which when so executed and delivered (including delivery by facsimile) shall be deemed an original, and all of which together shall constitute one and the same agreement.