This USER SERVICES AGREEMENT (“Agreement”) is entered into by and between Koshida (U.S.A.) Inc., a California corporation (“Provider”) and the person and/or entity agreeing to these terms (“You” or “Your” as the context requires). This Agreement is effective as of the date You sign up for, access or otherwise use the Service (the “Effective Date”). This Agreement governs Your access and use of Provider’s online digital signage application service offering (the “Service”) that You will have access to when you sign up for the Service.
By signing up for, accessing or otherwise using the Service, You agree to be bound by the terms and conditions of this Agreement, including the disclaimer of warranty, limitation of liability and indemnification provisions below. If You do not agree to the terms and conditions of this Agreement, do not sign up, access or use the Service (including any related software).
1. Service. Subject to payment of all applicable service and/or license fees (including such fees agreed upon by You in a separate agreement entered by and between You and Provider, the “Business Terms”)) and compliance with all terms and conditions of this Agreement, Provider grants to You a limited, non sublicensable, non-exclusive, non-transferable right to use the Service solely for online digital signage use in connection with your internal business operations within the United States of America for such applicable term agreed upon by You and the Provider in the Business Terms (the “Term”).
2. Maintenance. Your Service fee includes updates (bug fixes), if any, that Provider may release for the Service during the Term. Such updates provided to You by Provider will be considered part of the Service and therefore subject to the terms and conditions of this Agreement. Provider is under no obligation to (i) develop or provide additional features or functionalities to the Service or (ii) provide on-site support services to You.
3. Ownership Rights; Submissions. The Service and all intellectual property incorporated therein is protected by worldwide patent, copyright, trade secret, trademark and other intellectual property laws, and international treaty provisions. All right, title and interest, including all patents, copyrights, trade secrets, trademarks and other intellectual property rights in and to the Service are owned by Provider and/or its licensors and suppliers. This Agreement does not transfer to You any ownership interest of any kind in the Service or the intellectual property rights in the Service. This Agreement gives You only a limited right to use the Service in compliance with the terms and conditions contained in this Agreement. The Service contains or uses third party programs and the license terms with those programs apply to your use of them.
4. Communications and Submissions. Technical information You provide to Provider as part of Your use of the Services, if any, may be used by Provider for any purposes including for product support and development. Any written or oral materials or information You submit to Provider, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, will be deemed non-confidential upon submission. You grant to Provider and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, use, copy, transmit, distribute, license, create derivative works of, commercialize, display and perform such submissions with or without the Service.
5. Restrictions and Obligations. You may not (except to the extent that the following activities are expressly permitted by applicable law notwithstanding the following limitations) (i) remove any proprietary notices, trademarks or labels on the Service, (ii) reverse engineer, decompile, or disassemble any component of the Service, (iii) modify or create a derivative work based upon the Service, in whole or in part, (iv) apply any techniques to derive any trade secrets embodied in the Service, (v) rent or lease the Service, (vi) permit any parent, affiliate, subsidiary or any other third party to benefit from the use or functionality of the Service, either directly or indirectly through a facility management, timesharing, service bureau or any other arrangement, or otherwise transfer any of the rights granted to You under this Agreement, or (vii) assign, by operation of law or otherwise, this Agreement or any of Your rights under this Agreement, or delegate Your obligations under this Agreement to any third party without Provider’s prior written consent. You may not duplicate or copy any portion of the Service except as expressly permitted under this Agreement. You will secure and protect the Service and intellectual property rights associated with it, and will take such actions with Your employees and other persons who are permitted access to the Service as may be necessary to satisfy Your obligations under this Agreement. If You become aware that the Service is being used in a manner not permitted by this Agreement, You will immediately notify Provider and use reasonable efforts to terminate such impermissible use. You may not use the name of Provider in any advertising, promotional, sales literature or fundraising documents without prior written consent from an authorized representative of Provider. All rights not expressly set forth hereunder are reserved by Provider. Provider reserves the right to periodically conduct audits upon advance written notice to verify Your compliance with this Agreement.
6. Term; Provider Right to Terminate; Obligations on Termination; Survival. This Agreement will commence upon approval of your order by Provider and will continue for the Term or until You give written notice of termination to Provider in accordance with the notice provisions set forth in Section 11 below or until Provider terminates this Agreement in accordance with the terms of this Agreement or the Business Terms, whichever first occurs. Provider has the right to terminate this Agreement immediately upon the occurrence of any violation of this Agreement and/or if you fail to pay applicable service/license fees when due and payable under the Business Terms. Upon termination of this Agreement, You must promptly terminate your use of the Service, and Provider may suspend or deactivate Your use of the Service with or without notice. Sections 3-12 will survive termination of this Agreement.
7. Indemnification. You shall indemnify, hold harmless, and at Provider’s request, defend Provider, its licensors and suppliers and their agents from and against any loss, damage, liability, cost and expense (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from (i) any intellectual property claim resulting from any product or technology used by You in connection with the Services that was not provided or supplied by Provider or (ii) any claim that any content or data of any kind that was not created by Provider used by You in connection with the Services (including any content used or displayed on any digital sign) violates or infringes any intellectual property right or other proprietary right of any third party.
8. DISCLAIMER OF WARRANTIES. To the maximum extent permitted by applicable law, the following will apply to this Agreement:
A. THE SERVICE IS PROVIDED “AS IS” AND NEITHER PROVIDER NOR ITS LICENSORS SHALL HAVE ANY LIABILITY FOR THE SERVICE PROVIDED IN FURTHERANCE OF THIS AGREEMENT. PROVIDER AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING PROVISIONS, (i) YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICE, AND (ii) PROVIDER MAKES NO WARRANTY THAT (A) THE SERVICE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, (B) THE SERVICE WILL SATISFY YOUR REQUIREMENTS, (C) THE DATA AND FILES YOU STORE IN YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED; (D) THE DATA ON YOUR DESKTOP OR SERVER WILL NOT BE LOST OR DAMAGED; OR (E) THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
B. PROVIDER WILL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA OR DISCLOSURE OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR ANY HARDWARE USED IN CONNECTION WITH THE SERVICES, INCLUDING SUCH LOSS THAT RESULTS FROM YOUR FAILURE TO SECURE YOUR PASSWORD AND ACCOUNT. YOU ACKNOWLEDGE THAT ANY MATERIAL, CONTENT OR DATA YOU STORE OR RETRIEVE THROUGH THE USE OF THE SERVICE IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM (INCLUDING ANY HARDWARE USED WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE, STORAGE OR RETRIEVAL OF SUCH MATERIAL, CONTENT OR DATA IN CONNECTION WITH THE SERVICE. IF YOUR ACCOUNT IS CANCELLED FOR ANY REASON, INCLUDING UPON THE EXPIRATION OF THE TERM, YOUR DATA AND CONTENT SHALL BE PROMPTLY REMOVED AND DELETED. Provider shall not be liable for any interruption or deficient performance of the Service caused by the facilities, services, equipment or systems under the control of You or any third party, even if Provider has acted as Your agent in procuring the same from third parties.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, WILL EITHER PROVIDER OR ITS LICENSORS BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (SUCH AS LOSS OF PROFITS, CONTENT OR DATA) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE OR ACCESS THE SERVICE OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF PROVIDER OR ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL EITHER PROVIDER OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE SERVICE FEES RECEIVED FROM YOU FOR THE TWELVE (12) MONTH PERIOD PRECEEDING THE EVENT GIVING RISE TO SUCH DAMAGE OCCURED. THIS SECTION WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND WILL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
10. United States Government End-User Notice. The Service and software provided with the Service 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 such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. §§12.212, 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.
11. General Provisions. This Agreement and the Business Terms set forth all rights for the use of the Service and constitute the entire agreement between You and Provider. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Provider. No provision hereof will be deemed waived unless such waiver is in writing and signed by Provider or a duly authorized representative of Provider. Provider’s licensors shall be third party beneficiaries of Provider’s rights under this Agreement. You may not (i) assign or transfer this Agreement or any rights hereunder or (ii) delegate any duties or obligations hereunder, without the prior written consent of Provider. If any provision of this Agreement is held invalid or unenforceable, the enforceability of the remaining provisions will in no way be affected or impaired thereby. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by USPS, FedEx, UPS or other internationally recognized courier upon written verification of receipt; or (iii) by email transmission upon acknowledgment of receipt of electronic transmission. Notice to Provider shall be sent to the address on Provider’s Service Log-In Site or to such other address as Provider may specify in writing in accordance with this Section. Notice to You shall be sent to the address set forth on the most recent purchase order received from You or to another address as You may specify in writing in accordance with this Section.
12. Governing Law and Binding Arbitration. This Agreement is governed by the laws of the State of California, without reference to conflicts of law principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The parties agree that any controversy or claim arising out of or related to this Agreement shall be exclusively settled by binding arbitration in Santa Clara County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by an arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing arbitration provision, You agree that Provider and its licensors will have the right to seek and obtain immediate injunctive relief to enforce such obligations under the Agreement where a breach thereof would cause irreparable harm and/or significant injury to Provider and/or a remedy at law would be inadequate.