SOFTWARE LICENSE AGREEMENT
This software license agreement (License) is made as of the Effective Date set forth above between Tripleplay Services North America Inc., a Delaware corporation (Tripleplay, us or we) with its place of business at 1320 North Semoran Blvd, Suite 105, Orlando FL 32807, and the customer identified above (Customer or you).
By signing this agreement, clicking “accept” in an online Order, by installing or using the Software, or by presenting an Order for Software or Hardware that is accepted by Tripleplay, the Customer agrees to the terms of this License.
Acceptance Date means the date you commence operational use of the Software;
Defect means, in the case of Software, any significant failure by the unmodified and uncombined Software to perform in accordance with the Documentation, and in the case of Hardware, any defect developing under normal use of the Hardware and due solely to faulty design (except to the extent that the design or any other material information, including details included in the specification, is supplied by or on behalf of the Customer) materials and/or workmanship.
Documentation means Tripleplay’s general system management and configuration documents and other information relating to the Software in hardcopy or electronic readable form;
End Device Unit means (i) a computer running a Microsoft, Apple, or Linux operating system that is lawfully licensed to you and upon which the Software is running, or (ii) an Internet Protocol set top box or Smart TV or other mobile device running the Software, in either case certified by Tripleplay for use with the Software;
Hardware means the computer hardware, set top boxes and remote controls provided by Tripleplay pursuant to the relevant Order accepted by Tripleplay;
Insolvency Event means any one or more of: (i) notice being issued to propose a resolution for winding up or dissolution, or such a resolution being passed; (ii) a petition for winding up or an administration or bankruptcy order being presented, or such an order being made; (iii) any steps being taken with a view to a voluntary arrangement or other assignment, composition or arrangement with all or any creditors or any moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness; (iv) suspension of payments to all or any creditors and/or ceasing business; (v) an administrator or receiver being appointed over a party or all or any of its assets; (vi) any action anywhere similar or analogous to any of the foregoing; (vii) the other party having reasonable grounds for believing that any of the foregoing is imminent. For the avoidance of doubt if any of the foregoing occurs in relation to an affiliated company of a party it shall be deemed to occur to that party;
License Fees means the charges payable by you for the use of the Software by you as set out at on the relevant Order;
Maintenance Release means a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version;
New Version means any new version of the Software which from time to time is publicly marketed and offered for purchase by Tripleplay in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
Order means a purchase order (or other order or request) from you, which is accepted by Tripleplay in writing, incorporating or referencing a quotation from Tripleplay setting out the Software or Hardware to be supplied by Tripleplay, the number of licensed End User Units and/or users, the License Fees, and the price of any Hardware;
Overall System means the Hardware, the Software, the Documentation and any other user manuals and other relevant documentation sold to you by Tripleplay (or its authored resellers) as detailed in the relevant Order;
Site means the site where the Overall System is to be located, as detailed in the relevant Order;
Software means the computer software and diagnostics (in object code form only) excluding Third Party Software, the data supplied with the software, and the associated media as set out in each Order, including any Maintenance Releases and New Versions that are provided to you from time to time pursuant to an order or a support services agreement;
Third Party Licenses means the license terms applicable to the Third Party Software;
Third Party Software means any third party or open source software, including any listed in the Documentation and Order, for which you will need to obtain a Third Party License in order to be able to use the Software or the Overall System, and any other software for which Tripleplay has a license or consent to use and which either forms part of or is used in conjunction with the Software;
Warranty Period means the period of 30 days from the Acceptance Date.
2.1 Subject to the terms herein, Tripleplay grants you for the full period of the copyright in the Software a non-transferable, non-exclusive, perpetual license to install and use the object code version of the Software upon the End Device Units at the Site, up to a maximum number of End Device Units and a maximum number of users as specified in the Order, solely for your internal business purposes. If at any time you wish to increase the maximum number of licensed End Device Units or users, you must issue a separate Order, which must be accepted by Tripleplay.
2.2 You acknowledge and agree that, in order to use the Software, you may need to independently obtain, and be responsible for, licenses to use certain Third Party Software, as set forth in the Order or the Documentation. Third Party Software is provided subject to and conditional upon your acceptance of the relevant Third Party Licenses.
2.3 You may make back-up copies of the Software as may be necessary for its lawful use. You shall make sure that all copies contain any copyright and other proprietary notices which were on the originals. You shall record the number and location of all copies of the Software and take reasonable steps to prevent unauthorised copying.
2.4 Except as expressly stated in this Clause 2, you have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by you, unless Tripleplay is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and you shall request Tripleplay to carry out such action or to provide such information (and shall meet Tripleplay’s reasonable costs in providing that information) before undertaking any such reduction.
2.5 You agree not to publish any tests (or results of any tests) run on the Software or Third Party Software (in whole or in part) without Tripleplay’s prior written approval.
2.6 You may not use the Software other than as specified in this License without the prior written consent of Tripleplay, and you acknowledge that additional fees may be payable on any change of use approved by Tripleplay.
2.7 You may not use any information provided by Tripleplay or its resellers or obtained by you during any action permitted under clause 2.4 to create any software whose function is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.8 You shall not (a) sub-license, assign or novate the benefit or burden of this license in whole or in part; (b) allow the Software to become the subject of any charge, lien or encumbrance; or (c) deal in any other manner with any or all of its rights and obligations under this License, without in each case the prior written consent of Tripleplay, such consent not to be unreasonably withheld or delayed.
2.9 This License sets out the entire right and license granted to you with respect to the Software.
3 YOUR OBLIGATIONS
3.1 You shall pay the License Fee, service fees, and Hardware prices as set forth in the Order. Where no price has been specified on the applicable Order in respect of any of the Hardware or services, Tripleplay’s standard pricing shall apply. Following acceptance of an Order, the price charged to the Customer under the Order in respect of Hardware which have not been delivered may be increased to reflect any increase in the cost to Tripleplay which is due to market conditions or any factor beyond the control of Tripleplay (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Hardware which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Tripleplay adequate information or instructions
3.2 Following acceptance of an Order, the price for Hardware which have not been delivered may be increased to reflect any increase in the cost to Tripleplay which is due to market conditions or any factor beyond the reasonable control of Tripleplay (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), or any delay caused by any instructions of the Customer or failure of the Customer to give Tripleplay adequate information or instructions.
3.3 You shall (a) notify Tripleplay promptly (and in any case within one week) in writing should the number of End Device Units and end users exceed the maximum allowed under the Order; and keep full, proper and up-to-date records of the end users of the Software, the End Devices Units and all such uses of the Software, and produce such records to Tripleplay on request from time to time.
3.4 You shall permit Tripleplay to inspect and have access to the Sites and any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this license, for the purposes of ensuring that you are complying with the terms of this license, provided that Tripleplay provides reasonable advance notice to you of such inspections, which shall take place at reasonable times.
4 PRICING AND PAYMENT
4.1 Tripleplay may invoice the Customer for the price of Hardware and services as set out on the applicable Order at any time after Tripleplay has notified the Customer in the case of Hardware that they are ready for collection or Tripleplay has tendered delivery of the same and in the case of services that the provision of the services has started or that they are ready to be delivered.
4.2 Payment must be made in USD unless otherwise agreed in writing prior to the order being accepted. Payments must be made by way of a cashier’s check, ACH transfer, electronic bank transfer or BACS payment.
4.3 Customer shall pay all invoices within 30 days of the invoice date. If Tripleplay takes any legal action to collect on undisputed delinquent amounts, Customer shall reimburse Tripleplay for its costs incurred in pursuing such action, including but not limited to legal fees and court costs.
4.4 Customer shall reimburse Tripleplay for all sales taxes and other taxes, however characterized by the taxing authority, based upon the fees, prices or other charges under this agreement, except for any taxes based upon Tripleplay’s net income or gross receipts or for any franchise or excise taxes.
4.5 If Customer is delinquent in payment of any portion of an invoice that it has not disputed in good faith, Tripleplay may, in addition to other remedies it may have, including termination, elect any to do any or all of the following by written notice to Customer:
4.5.1 cancel or suspend any further deliveries of Hardware or provision of services hereunder;
4.5.2 sell or otherwise dispose of any Hardware which are the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment;
4.5.3 charge a late fee on delinquent amounts at the rate of 1.5% per month (or, if lower, the maximum amount permitted by law) that a payment is overdue;
4.5.4 revoke the License granted for any Software; or
4.5.5 where payment is agreed to be made in instalments, declare all remaining instalments due and payable.
4.6 Tripleplay may allocate any payment made by the Customer to such of the Hardware or services as Tripleplay may deem appropriate (notwithstanding any purported appropriation by the Customer).
5 DELIVERY AND PERFORMANCE TERMS
5.1 Tripleplay will only be obliged to carry out services during business days and Customer shall pay overtime surcharges for any overtime worked upon request by the Customer.
5.2 Where the services are performed at the premises of the Customer, the Customer will provide free of charge:
5.2.1 proper and safe storage and protection of all Hardware, tools, plant, equipment and materials on site;
5.2.2 Internet access for email and telephony services;
5.2.3 free and safe access to the site and place where the services are to be performed;
5.2.4 all facilities and services necessary to enable such services to be performed safely and expeditiously;
5.2.5 if such services include the installation of Hardware, all builders work, foundations and cutting away and making good where necessary;
5.2.6 the availability of all plant and equipment to permit the Hardware to be tested upon completion of services;
5.2.7 any specific other terms outlined in the Order associated with the services to be carried out.
5.3 Tripleplay has no obligation to provide Maintenance Releases, New Versions or any other updates or support pursuant to this License. In the event, any Maintenance Release is provided to you, you shall install it as soon as reasonably practicable after receipt.
5.4 Any time quoted by Tripleplay for delivery of all or any of the Hardware and/or performance of all or any of the services is an estimate only. Tripleplay will not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.
5.5 In the absence of an agreement for charging delivery for the Hardware to the Customer, Customer shall arrange to pick up the Hardware at Tripleplay’s premises as soon as practicable following notification from Tripleplay that the Hardware is ready for pickup or, if some other place for delivery is agreed by Tripleplay, by Tripleplay delivering the Hardware to that place.
5.6 If the Customer fails to take delivery of the Hardware or fails to give Tripleplay adequate delivery instructions after notification by Tripleplay that the Hardware is ready, Tripleplay may (without prejudice to its other rights and remedies):
5.6.1 store the Hardware and, if such storage continues in excess of two weeks, charge the Customer for its reasonable costs (including without limitation, tax, carriage and insurance); and/or
5.6.2 sell the Hardware at any time and, after deducting all costs and expenses, remit to the Customer for any excess over the price already paid for the Hardware or charge the Customer for any shortfall between the Order price and such costs and expenses.
5.7 Notification of non-compliant delivery or damage in transit must be made in writing to Tripleplay within 5 days of the receipt of the Hardware. Notification of non-delivery must be made in writing to Tripleplay within 7 days after the date of Tripleplay’s applicable invoice.
5.8 Tripleplay will at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery, non-compliant delivery or damage notified in accordance with previous two clauses and, except as provided in this clause, Tripleplay will not be liable for any such non-delivery, non-compliant, delivery or damage in transit, nor for any loss, financial or otherwise, resulting directly or indirectly therefrom. In no event will Tripleplay be liable to the Customer in connection with any damage or loss in transit where delivery takes place at Tripleplay’s premises.
5.9 Risk of loss in the Hardware will pass to the Customer immediately upon delivery to the Customer or into custody on the Customer’s behalf whichever is the sooner.
5.10 Title to the Hardware will remain with Tripleplay until Tripleplay has received payment in full of the price of all Hardware, Software and services under the applicable Order. Until that time, Customer shall keep the Hardware properly stored, protected and insured and separate from all or any other goods, whether belonging to Tripleplay, the Customer or any third party.
6 ORDERS, QUOTATIONS, AND SAMPLES
6.1 Quotations are not binding and do not constitute an offer by Tripleplay subject of acceptance by the Customer.
6.2 You are responsible for ensuring that all of your requirements are accurately and adequately set out in the Order.
6.3 Tripleplay reserves the right to make any changes to the specification of the Hardware or performance of any services which are required to conform with applicable law or which do not materially affect the quality or performance of the Hardware or services.
6.4 Customer may not cancel or modify an accepted Order without Tripleplay’s prior written consent, and upon terms that:
6.4.1 the Customer will indemnify Tripleplay in full against all loss (including without limitation loss of profit) damages, costs expenses and other liabilities awarded against or incurred by Tripleplay as a result of or in connection with the cancellation;
6.4.2 the Hardware returned are accompanied by reference to a returns number supplied by Tripleplay, are in the exact condition as at the time of delivery by Tripleplay and are appropriately packaged for such return;
6.4.3 the Customer is responsible for the cost of carriage and insurance in respect of such returned Hardware and such Hardware will remain at the Customer’s risk until actual receipt by Tripleplay;
6.4.4 the Customer will pay 20% of the price of the Hardware as set out on the applicable Order as a restocking fee for all Hardware returned to Tripleplay as part of a cancellation.
6.5 All returnable containers and packing materials will be charged for, but credit will be given if these are returned in a condition satisfactory to Tripleplay.
7.1 We may terminate this License immediately by written notice to you if:
7.1.1 you commit a material or persistent breach of this License which you fail to remedy (if remediable) within 14 days after receipt of written notice requiring you to do so; or
7.1.2 an Insolvency Event occurs in respect of the Customer.
7.2 Upon termination for any reason, (a) all rights granted to you under this License shall cease; (b) you must immediately cease all activities authorised by this License; and (c) you must immediately delete or remove the Software from all Hardware, End Device Units, or other computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software and Documentation then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
8 WARRANTIES AND LIABILITY
8.1 Tripleplay warrants to you that during the Warranty Period:
8.1.1 the Software shall comply with the Documentation, provided that the Software is correctly used, treated, installed and maintained by you;
8.1.2 it is not aware of any rights of any third party which would or might render the license of the Software for use with the Overall System unlawful; and
8.1.3 it has the right to license the Software under this License.
8.2 If, within the Warranty Period, you notify Tripleplay in writing of any Defect, and such defect or fault does not result from (i) your, or anyone acting on your authority, having acted outside the terms of this License or (ii) the combination with any other software not provided by Tripleplay, or it has not used in accordance with the Documentation, Tripleplay shall, at its option, do one of the following:
8.2.1 replace or repair the Software, or the specific element in question; or
8.2.2 terminate your license immediately by written notice to you and refund the License Fee (where this has been paid) (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof, provided that you provide all the information that may be necessary to assist Tripleplay in resolving the Defect or fault, including a documented example of any Defect or fault, or sufficient information to enable Tripleplay to re-create the Defect or fault.
8.3 In the event of a Defect in the Hardware, Tripleplay shall, at its sole option, either reimburse the whole or such part of the price set out in the applicable Order as Tripleplay reasonably determines represents an appropriate allocation to the relevant Hardware (and, where relevant, as a deduction from any part of the price remaining unpaid), repair or replace the affected Hardware. This Hardware warranty does not apply, and Tripleplay has no liability in respect of
8.3.1 any Defect not notified in writing to Tripleplay within 14 days from the date of delivery or, where the failure was not apparent on reasonable inspection, within a reasonable time after discovery of the Defect, and in any event within three months from the date of delivery;
8.3.2 any Defect arising from ordinary wear and tear, or other acts of the Customer including without limitation wilful damage, negligence, lack of proper maintenance or servicing, abnormal working conditions, failure to follow Tripleplay’s instructions (whether oral or in writing), misuse or alteration or repair of the Hardware without Tripleplay’s approval;
8.3.3 any Third Party Software or any parts, materials or equipment not manufactured by Tripleplay in respect of which the Customer will only be entitled to such of the benefit of any warranty or guarantee to the extent as it is given by the relevant manufacturer to Tripleplay and the benefit of it can be transferred to the Customer; and
8.4 Notwithstanding anything else to the contrary, no warranty set out in this License applies until all amounts due from the Customer have been paid in full unless agreed in writing prior to delivery of the Hardware.
8.5 Customer shall make any Hardware alleged to be defective available to Tripleplay for inspection and, if so required by Tripleplay, promptly return such Hardware at the Customer’s risk and expense to Tripleplay’s works for inspection.
8.6 Tripleplay does not warrant that the operation or use of the Overall System, or any element thereof, shall be uninterrupted or error-free. You accept responsibility for the selection of the Overall System to achieve its intended results and acknowledge that the Overall System has not been developed to meet your individual requirements.
8.7 You acknowledge that, except as set forth herein, the Overall System, any Third Party Software provided by Tripleplay is provided “as is” and expressly subject to the following disclaimer. To the fullest extent permitted by law, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this license or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.8 Nothing in this License will operate so as to exclude or limit our liability in respect of death or personal injury caused by our negligence or that of our servants or agents.
8.9 Subject to clause 8.8, we shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, including but not limited to loss of profits, loss of business depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of use, or loss or corruption of data or information.
8.10 Subject to clause 8.8 and without prejudice to clause 8.2, Tripleplay is not liable to the Customer in contract, tort (including without limitation negligence or misrepresentation whether innocent or negligent) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in relation to the Software, in a sum which is greater than the total License Fee paid by the Customer to Tripleplay in respect of the relevant Software, as set out on the relevant Order.
8.11 You agree that, in entering into this License, either you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this license or (if you did rely on any representations, whether written or oral, not expressly set out in this license) that you shall have no remedy in respect of such representations and (in either case) Tripleplay shall have no liability in any circumstances otherwise than in accordance with the express terms of this license.
9 general PROVISIONS
9.1 Regardless of any statement made by you to Tripleplay of an ultimate destination of the Software, you shall use the Software only at the Site and shall not export or re-export any Software without the appropriate U.S. or foreign export licenses.
9.2 If any provision of this License is held by any court or other competent authority to be void or unenforceable in whole or in part, this License shall continue to be valid as to the other provisions hereof and as to the remainder of the affected provision (as the case may be).
9.3 Subject to clause 2.8, you may not assign or transfer your rights and liabilities under this License, or any of them, or sub-contract or otherwise delegate any of your obligations under this License without the prior written consent of Tripleplay.
9.4 The parties can waive a provision of this License only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this License, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
9.5 This constitutes the final agreement between the parties with respect to the matters set forth herein. No additional terms and conditions included with any Order are binding on Tripleplay, even if the Order is otherwise accepted by Tripleplay. All such additional terms will be of no force or effect and will be deemed rejected by Customer in their entirety. In the event of any conflicts between this License and any Order, the order of precedence is the order set forth in this sentence, except to the extent that the conflicting document expressly states its intention to override a specific provision of the controlling document. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this License are expressly merged into and superseded by this License. The provisions of this License cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this License, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this License. There are no conditions precedent to the effectiveness of this License, other than any that are expressly stated in this License.
9.6 The laws of the State of Florida (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this License and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this License must be brought exclusively in a state or federal court of competent jurisdiction sitting in Orlando, Florida, and each party to this License submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this License.
9.7 Each party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this License must give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this License is a writing: personal delivery, registered or certified U.S. Mail (in each case, return receipt requested and postage prepaid), or nationally recognized overnight courier (with all fees prepaid). Any party giving a Notice must address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address listed on the first page of this License or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. Except as provided elsewhere in this agreement, a Notice is effective only if the party giving the Notice has complied with this paragraph.
Tripleplay Services North America, Inc.