This Service Agreement (the "Agreement") is a legal agreement between you ("Operator", "You", or "Your") and Barcast ("Barcast").
YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN BEGIN USING THE SERVICE. BY SUBMITTING YOUR APPLICATION TO Barcast, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF ANOTHER PARTY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
1. Hardware, Software, and Service
1.1 Service
Barcast operates a managed media service that delivers content (collectively, the "Barcast Stream") and responds to certain text messages from the public via a bot application (the "Barcast Bot"). The Barcast Bot receives text messages from Your patrons (each, a "Viewer") in response to content that either You or an Advertiser, as defined below, have approved for insertion into the Barcast Steam (collectively, "Viewer Responses") and replies to Viewer Responses with offers, discounts, and similar incentives (each a "Promo Code"). Barcast will provide You with hardware in the form of wireless media storage devices (each a "Stick") and a support alias (the "Alias") where You can request promotional content and/or Promo Codes into the Barcast Stream to be updated (collectively, the "Service").
1.2 Advertising
Barcast will update announcements and similar promotional messages (collectively, "Operator Messages") to the Stick(s) for display upon Operator email request to the Alias. Barcast also contracts with third party advertisers (each, an "Advertiser") to include advertisements in the Barcast Stream (each, a "Third-Party Ad"). Barcast may replace or remove Third-Party Ads at any time.
1.3 Logistics
The Service requires that the Stick(s) remain powered on, connected to a WiFi network and plugged in to Approved Screen(s) operating at an approved Operator Site at all times. You agree to feature the Barcast Stream on said Approved Screen(s) during at least 90% of operating hours. In the event of a Viewer Response to an Operator Message, the Barcast Bot will transmit the promotional code associated with such response to the Viewer. You agree to accept all of Your Promo Codes redeemed by Viewers and to make reasonable efforts to create and upload Operator Messages intended to generate Viewer Responses. Barcast may audit Your use of and access to the Service, including total streaming time of the Service at the Operator Site, total Operator Messages and/or Third-Party Ads displayed, total bandwidth usage, and total uptime, and may suspend Your access to or use of the Service at any time, in its sole discretion, for any improper, unlawful, or otherwise fraudulent use of the Service, or for Your non-compliance with any term of this Agreement or any content guidelines that Barcast may provide to You. To mitigate the risk of a data breach, each Stick will automatically initiate a security update one time per month. The update can take several hours and You agree to not turn off the Stick(s) while the update is being performed. If there are any technical issues with the Stick(s) or the Service, You agree to inform support@barcast.tv immediately.
1.4 Definitions
2. Compensation
2.1 Subscription Fees
The monthly fee for the Operator's access to the Service (the "Subscription Fee") will range from [$0/m] to [$49/m]. The monthly fee for the Operator's use of more than 1 Stick (the "Hardware Fee") will be [$9/m] for each additional Stick. Operator shall pay the monthly Subscription Fee(s) and Hardware Fee(s) in advance for the following one month of the Service, until termination of this Agreement. Subscription Fee(s) and Hardware Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.2 Service Fees
Operator can purchase additional services (the "Service Fees") from Barcast including custom TV content, website creation, website hosting and technical troubleshooting. Service Fee(s) will range from [$49] to [$1,499]. Service Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.3 Failure of Payment
In addition to other remedies available to Barcast, any payment not received by Barcast when due will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the date due until paid. In addition, Operator's failure to pay any amounts due within 30 days of the invoice date will be deemed a material breach of this Agreement, justifying suspension of Operator's use of the Stick(s) and access to the Service, and will be sufficient cause for termination of this Agreement. Any such suspension will not relieve Operator from paying any past due amounts plus interest.
3. License Grant
3.1 Client Access
Barcast hereby grants to You, including Your employees who will have access to the Stick(s), a non-exclusive, non-assignable, royalty-free, worldwide license to access and use the Service subject to the restrictions below in connection with the Service at one Operator Site during the term of this Agreement; provided, however, that the restrictions in this Section 3 will not apply to Operator Content.
3.2 Restrictions
4.1 Retain Ownership of Preexisting Intellectual Property
Except for the rights granted in the License Grant of this Agreement, each party will retain all interest in and ownership of its Intellectual Property existing prior to this Agreement or developed outside the scope of this Agreement.
4.2 Retain Ownership of Licensed Intellectual Property
Barcast and its licensors, as applicable, retain all right, title, and interest in and to the Service, the Stick(s), Third-Party Ads, and the Barcast Stream, and all elements of each of those, including all copyrights, trademarks, patent rights, trade secrets, know-how and any other proprietary rights recognized in any country or jurisdiction in the world, including registrations, applications, renewals, and extensions of such rights therein (collectively, the "Licensed Intellectual Property"). Your use of the Licensed Intellectual Property and any good will accrued is solely for Barcast's benefit.
4.3 Definitions
5.1 Data Ownership
You acknowledge that Barcast may automatically collect a variety of information associated with Viewer Responses, some of which may be associated with individual Viewers or other users of Software Devices associated with such Viewers. To the extent that Barcast collects any Viewer information and data in connection with the Service at Your Operator Site, such information and data will be the sole and exclusive property of Barcast, who in it's sole discretion, may market and re-market information about Viewers or data without further obligation to You.
5.2 Privacy Obligations
Both parties recognize the importance of consumer privacy and therefore warrant that in the performance of this Agreement, they will adhere to all applicable privacy laws, regulations, and best practice standards including (a) (Section 5 of the FTC Act prohibiting unlawful or deceptive trade practices, codified at 15 U.S.C. § 45; and (b) the Network Advertising Initiative's (NAI) Self-Regulatory Principles. For Barcast's most current privacy policy, please see its website at http://www.barcast.tv/privacy.
6. Indemnification
6.1 Indemnification by Barcast
If a third party makes a claim against Barcast: (a) that Operator Messages infringe any copyright, trademark, patent, publicity, privacy, or other right, or misappropriate any trade secret; or (b) arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom, You shall defend Barcast and its directors, officers, and employees against the claim at Your expense, and You shall pay all losses, damages, and expenses (including the cost of any investigation and reasonable attorney's fees) finally awarded to such party or agreed to in a written settlement agreement signed by You, to the extent arising from the claim.
7. Mutual Representations
7.1 Authority and Capacity
The parties have the authority and capacity to enter into this Agreement.
7.2 No Restriction
Neither party is under any restriction or obligation that could affect its performance of its obligations under this Agreement.
7.3 No Violation, Breach, or Conflict
Neither party's execution, delivery, and performance of this Agreement and the other documents to which it is a party, and the consummation of the transactions contemplated in this Agreement, do or will result in its violation or breach of any: (a) provision of its certificate of incorporation, certificate of organization, bylaws, operating agreement, or other governing document; (b) applicable Law or Order; or (c) other agreement to which it is a party.
7.4 Execution and Delivery
The parties have duly executed and delivered this Agreement.
7.5 Enforceability
This Agreement constitutes a legal, valid, and binding obligation, en-forceable against the parties in accordance with its terms.
8. Warranties; Disclaimer; Waiver and Limitation of Liability
8.1 Disclaimer
You assume sole responsibility and liability for Your use of the Service, including any results obtained from such use. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Barcast DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITH RESPECT TO THIRD-PARTY ADS, Barcast DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Barcast EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE OR THIRD-PARTY ADS WILL BE COMPATIBLE WITH OPERATOR SITES, THAT THE OPERATION OF THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Barcast OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that Advertisers will not be liable to You under this Agreement for any claims, damages, losses, liabilities, costs, or expenses (including attorneys' fees) of any kind. You and Barcast hereby agree that each Advertiser is an intended third-party beneficiary of the foregoing.
8.2 Liability Waiver
In providing the Service and transmitting Promo Codes through the Barcast Bot, neither Barcast nor any officer, director, employee, shareholder, or agent of Barcast represents or warrants that any Viewer is at least 21 years of age as required by Federal and State laws regarding purchasers of alcoholic beverages. By using the Service, including Promo Codes, You agree to comply with all such laws, and You release, waive, discharge, and covenant not to sue Barcast or its partners from any liability arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom.
8.3 Operator Warranty
You represent and warrant that: (a) You own without restriction, or have obtained license rights, to all content uploaded as Operator Messages, including text, images and video; (b) Operator Messages will not infringe any third party Intellectual Property, publicity, or privacy rights, will not be defamatory, vulgar, pornographic, or obscene, and will comply with any content guidelines provided by Barcast; and (c) Your use of the Service will be in compliance with all applicable laws and regulations.
8.4 Damage Limitations
Except for liability arising or resulting from or related to Your obligations under Section 6.2 and Section 9.2, neither party will be liable to the other for indirect, incidental, consequential, special, or exemplary damages arising from this Agreement, including loss of income, data, profits, or revenue, business interruption, cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and regardless of the theory on which such claim for recovery is based.
9. Term, Termination, and Renewal
9.1 Term
Unless earlier terminated as set forth herein, this Agreement is effective from the date that Barcast first accepts Your application (the "Effective Date") through the first anniversary of the Effective Date. After such time, this Agreement will automatically renew for successive 12-month terms unless either party notifies the other that such party will not renew the Agreement not fewer than 30 days before the end of the then-current term.
9.2 Termination on Notice
Either party may terminate this Agreement for any reason on 30 days' notice to the other.
9.3 Termination on Material Breach
Either party may terminate this Agreement with immediate effect by delivering notice of the termination to the other, if: (a) the non-terminating party commits any material breach or material default in the performance of this Agreement; and (b) the breach or default continues for a period of ten days after the non-terminating party delivers notice to the other reasonably detailing the breach or default. Without limiting the foregoing, in the event that You use the Stick(s) on an unapproved screen without Barcast's prior written consent, or remove any Third-Party Ads or otherwise block the operation of the advertising portion of the Service without giving Barcast appropriate notice of termination, such action will be deemed a material breach of this Agreement.
9.4 Termination on Insolvency
Either party may terminate this Agreement with immediate effect, by giving notice to the other, on the other party's insolvency, bankruptcy, receivership, dissolution, or liquidation.
9.5 Effect of Termination
Upon expiration or termination of this Agreement: (a) You will cease all use of the Service; (b) You will return the Stick(s) to Barcast; and (c) Barcast's obligations relating to the Service will terminate. Sections 3 through 10 will survive expiration or termination of this Agreement.
9.6 Failure to Return upon Termination
If Barcast does not receive the Stick(s) in substantially the same condition as provided to You, Barcast may assess its then-current charge for the Stick(s).
10. General Provisions
10.1 Notice
All notices required or permitted under this Agreement will be in writing and delivered by: (a) confirmed facsimile transmission or email with a delivery receipt, in both cases deemed given upon delivery of confirmation; (b) certified mail, deemed given three days after mailing; or (c) courier or overnight delivery services, deemed given upon receipt. All communications will be sent to a party's then-current address, email address, or facsimile number, as provided in writing to the other party.
10.2 Publicity
Barcast may include Operator's name and logo in Barcast's customer lists and on its website and may issue media releases announcing the relationship and the manner in which Operator will use the Service. Barcast will coordinate its efforts with appropriate communications personnel in Operator's organization to secure approval of media releases if necessary.
10.3 Assignment
You may not assign this Agreement or any of its rights or obligations thereunder without Barcast's prior written consent. Barcast may assign this Agreement or any of its rights and obligations thereunder, effective upon notice to You, (a) to any subsidiary or affiliate; or (b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of Barcast's obligations.
10.4 Successors
This Agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.
10.5 Relationship of Parties
Nothing in the Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties nor to give either party the power to bind the other or to incur obligations on the other's behalf. Except as otherwise provided in Section 9.1, this Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party.
10.6 Force Majeure
Barcast may amend the terms and conditions of this Agreement at any time by reasonable notice, including by posting revised terms on its website at http://www.barcast.tv/terms which amended terms and conditions will be binding upon You. Barcast may make changes to this Agreement from time to time. Barcast will provide notification of such changes and make the updated version of this Agreement available at http://www.barcast.tv/terms. If You use or enjoy the benefits of the Service at any time following the date on which Barcast has made the new terms available to You, such use or enjoyment will be deemed acceptance of the updated Agreement. If You do not agree to such new terms, You must discontinue use of the Service and terminate this Agreement by notice to Barcast.
10.8 Waiver
A party's failure to exercise or delay in exercising any right, power, or privilege under this Agreement will not operate as a waiver; nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
10.9 Severability
If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
10.10 Interpretation
This Agreement will be governed, construed, and enforced in accordance with the laws of the State of Oregon, without regard to its conflict of laws rules.
10.12 Entire Agreement
This Agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
This Interactive Media Service Agreement is a contract between You and Barcast for your use of the Service. By clicking, "I accept" or by installing or using the Service, You agree to be bound by the terms of this Agreement, including the disclaimers. If you do not agree to these terms, do not install or use the Service.
YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN BEGIN USING THE SERVICE. BY SUBMITTING YOUR APPLICATION TO Barcast, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF ANOTHER PARTY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
1. Hardware, Software, and Service
1.1 Service
Barcast operates a managed media service that delivers content (collectively, the "Barcast Stream") and responds to certain text messages from the public via a bot application (the "Barcast Bot"). The Barcast Bot receives text messages from Your patrons (each, a "Viewer") in response to content that either You or an Advertiser, as defined below, have approved for insertion into the Barcast Steam (collectively, "Viewer Responses") and replies to Viewer Responses with offers, discounts, and similar incentives (each a "Promo Code"). Barcast will provide You with hardware in the form of wireless media storage devices (each a "Stick") and a support alias (the "Alias") where You can request promotional content and/or Promo Codes into the Barcast Stream to be updated (collectively, the "Service").
1.2 Advertising
Barcast will update announcements and similar promotional messages (collectively, "Operator Messages") to the Stick(s) for display upon Operator email request to the Alias. Barcast also contracts with third party advertisers (each, an "Advertiser") to include advertisements in the Barcast Stream (each, a "Third-Party Ad"). Barcast may replace or remove Third-Party Ads at any time.
1.3 Logistics
The Service requires that the Stick(s) remain powered on, connected to a WiFi network and plugged in to Approved Screen(s) operating at an approved Operator Site at all times. You agree to feature the Barcast Stream on said Approved Screen(s) during at least 90% of operating hours. In the event of a Viewer Response to an Operator Message, the Barcast Bot will transmit the promotional code associated with such response to the Viewer. You agree to accept all of Your Promo Codes redeemed by Viewers and to make reasonable efforts to create and upload Operator Messages intended to generate Viewer Responses. Barcast may audit Your use of and access to the Service, including total streaming time of the Service at the Operator Site, total Operator Messages and/or Third-Party Ads displayed, total bandwidth usage, and total uptime, and may suspend Your access to or use of the Service at any time, in its sole discretion, for any improper, unlawful, or otherwise fraudulent use of the Service, or for Your non-compliance with any term of this Agreement or any content guidelines that Barcast may provide to You. To mitigate the risk of a data breach, each Stick will automatically initiate a security update one time per month. The update can take several hours and You agree to not turn off the Stick(s) while the update is being performed. If there are any technical issues with the Stick(s) or the Service, You agree to inform support@barcast.tv immediately.
1.4 Definitions
- Approved Screen
"Approved Screen" means a video display device with the following minimum performance attributes: (1) A location on the Operator Site in one of the primary public areas and within 10 feet of an available power outlet; (2) capability to receive and display a WiFi signal; (3) capability to receive and play an audio signal, either locally or via a distributed sound system; (4) screen size of 32 inches measured from one corner of the screen diagonally across to the opposite corner; (5) an available High-Definition Multimedia Interface ("HDMI") port. - Mobile Device.
"Mobile Device" means an individually addressed and addressable IP-enabled mobile hardware device of a user, excluding a Personal Computer, generally receiving transmission of a program over a transmission system designed for Mobile Devices such as GSM, UMTS, LTE and IEEE802.11 ("WiFi"). - Operator Site.
"Operator Site" means a physical location held open to the public for the conduct of retail business by Operator and at which Operator maintains one or more Software Devices. - Software Device.
"Software Device" means an IP-enabled, uniquely addressable Personal Computer that is: (1) capable of accessing the Internet; provided, however that Mobile Devices will constitute Software Devices solely when transmitting Viewer Responses and receiving Promo Codes through WiFi or a cellular provider; and (2) capable of enforcing the usage restrictions set forth in Section 3.2.
2. Compensation
2.1 Subscription Fees
The monthly fee for the Operator's access to the Service (the "Subscription Fee") will range from [$0/m] to [$49/m]. The monthly fee for the Operator's use of more than 1 Stick (the "Hardware Fee") will be [$9/m] for each additional Stick. Operator shall pay the monthly Subscription Fee(s) and Hardware Fee(s) in advance for the following one month of the Service, until termination of this Agreement. Subscription Fee(s) and Hardware Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.2 Service Fees
Operator can purchase additional services (the "Service Fees") from Barcast including custom TV content, website creation, website hosting and technical troubleshooting. Service Fee(s) will range from [$49] to [$1,499]. Service Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.3 Failure of Payment
In addition to other remedies available to Barcast, any payment not received by Barcast when due will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the date due until paid. In addition, Operator's failure to pay any amounts due within 30 days of the invoice date will be deemed a material breach of this Agreement, justifying suspension of Operator's use of the Stick(s) and access to the Service, and will be sufficient cause for termination of this Agreement. Any such suspension will not relieve Operator from paying any past due amounts plus interest.
3. License Grant
3.1 Client Access
Barcast hereby grants to You, including Your employees who will have access to the Stick(s), a non-exclusive, non-assignable, royalty-free, worldwide license to access and use the Service subject to the restrictions below in connection with the Service at one Operator Site during the term of this Agreement; provided, however, that the restrictions in this Section 3 will not apply to Operator Content.
3.2 Restrictions
- No Distribution, etc.
You may not distribute, license, sell, re-syndicate, or loan the Stick(s) or any content contained on, uploaded to, or otherwise available upon or displayed through the Stick(s) or the Service. - No Unapproved Screens.
You may not use the Stick(s) with any screen other than an Approved Screen without Barcast's prior written consent. - No Third-Party Access.
You may not sell, license, or grant any access to or use of the Service to any third party. - No Modification.
You may not modify, alter, or create any derivative works of the Barcast Stream or Third-Party Ads, or remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in any Barcast Stream or Third-Party Ads. - No Reverse Engineering.
You acknowledge that the Service constitutes and contains trade secrets of Barcast and its licensors, and, in order to protect such trade secrets and other interests that Barcast and its licensors may have in the Service, You agree not to reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Stick(s) or the Service, nor permit any third party to do so, except to the extent such restrictions are prohibited by law. - No Copyright Violations.
You may not upload, post, reproduce, distribute, or otherwise transmit by means of the Stick(s) or the Service any information, software, or other material protected by copyright, privacy rights, or any other Intellectual Property right without first obtaining the permission of the owner of such rights.
4.1 Retain Ownership of Preexisting Intellectual Property
Except for the rights granted in the License Grant of this Agreement, each party will retain all interest in and ownership of its Intellectual Property existing prior to this Agreement or developed outside the scope of this Agreement.
4.2 Retain Ownership of Licensed Intellectual Property
Barcast and its licensors, as applicable, retain all right, title, and interest in and to the Service, the Stick(s), Third-Party Ads, and the Barcast Stream, and all elements of each of those, including all copyrights, trademarks, patent rights, trade secrets, know-how and any other proprietary rights recognized in any country or jurisdiction in the world, including registrations, applications, renewals, and extensions of such rights therein (collectively, the "Licensed Intellectual Property"). Your use of the Licensed Intellectual Property and any good will accrued is solely for Barcast's benefit.
4.3 Definitions
- Intellectual Property.
"Intellectual Property" means any of the following in any jurisdiction throughout the world: (1) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing; (2) copyrights, including all applications and registrations related to the foregoing; (3) patents and patent applications; (4) trade secrets and confidential know-how; (5) websites and internet domain name registrations; and (6) other Intellectual Property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing)
5.1 Data Ownership
You acknowledge that Barcast may automatically collect a variety of information associated with Viewer Responses, some of which may be associated with individual Viewers or other users of Software Devices associated with such Viewers. To the extent that Barcast collects any Viewer information and data in connection with the Service at Your Operator Site, such information and data will be the sole and exclusive property of Barcast, who in it's sole discretion, may market and re-market information about Viewers or data without further obligation to You.
5.2 Privacy Obligations
Both parties recognize the importance of consumer privacy and therefore warrant that in the performance of this Agreement, they will adhere to all applicable privacy laws, regulations, and best practice standards including (a) (Section 5 of the FTC Act prohibiting unlawful or deceptive trade practices, codified at 15 U.S.C. § 45; and (b) the Network Advertising Initiative's (NAI) Self-Regulatory Principles. For Barcast's most current privacy policy, please see its website at http://www.barcast.tv/privacy.
6. Indemnification
6.1 Indemnification by Barcast
- Barcast Indemnity.
If a third party makes a claim against You that the Barcast Stream, exclusive of any Third-Party Ad, infringes any copyright, trademark, patent, publicity, privacy, or other right, or misappropriates any trade secret, You agree that you will notify Barcast immediately. Upon notification, Barcast shall defend You and Your directors, officers, and employees against the claim at Barcast's expense, and Barcast shall pay all losses, damages, and expenses (including reasonable attorneys' fees) finally awarded to such party or agreed to in a written settlement agreement signed by Barcast, to the extent arising from the claim. - Barcast Indemnity Exclusions.
Barcast will not be liable for any claim arising or resulting from or related to: (1) Operator Messages; (2) Third-Party Ads; (3) the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom; (4) any modification of the Service not authorized by Barcast; or (5) any use of the Service other than in accordance with this Agreement.
If a third party makes a claim against Barcast: (a) that Operator Messages infringe any copyright, trademark, patent, publicity, privacy, or other right, or misappropriate any trade secret; or (b) arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom, You shall defend Barcast and its directors, officers, and employees against the claim at Your expense, and You shall pay all losses, damages, and expenses (including the cost of any investigation and reasonable attorney's fees) finally awarded to such party or agreed to in a written settlement agreement signed by You, to the extent arising from the claim.
7. Mutual Representations
7.1 Authority and Capacity
The parties have the authority and capacity to enter into this Agreement.
7.2 No Restriction
Neither party is under any restriction or obligation that could affect its performance of its obligations under this Agreement.
7.3 No Violation, Breach, or Conflict
Neither party's execution, delivery, and performance of this Agreement and the other documents to which it is a party, and the consummation of the transactions contemplated in this Agreement, do or will result in its violation or breach of any: (a) provision of its certificate of incorporation, certificate of organization, bylaws, operating agreement, or other governing document; (b) applicable Law or Order; or (c) other agreement to which it is a party.
7.4 Execution and Delivery
The parties have duly executed and delivered this Agreement.
7.5 Enforceability
This Agreement constitutes a legal, valid, and binding obligation, en-forceable against the parties in accordance with its terms.
8. Warranties; Disclaimer; Waiver and Limitation of Liability
8.1 Disclaimer
You assume sole responsibility and liability for Your use of the Service, including any results obtained from such use. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Barcast DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITH RESPECT TO THIRD-PARTY ADS, Barcast DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Barcast EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE OR THIRD-PARTY ADS WILL BE COMPATIBLE WITH OPERATOR SITES, THAT THE OPERATION OF THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Barcast OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that Advertisers will not be liable to You under this Agreement for any claims, damages, losses, liabilities, costs, or expenses (including attorneys' fees) of any kind. You and Barcast hereby agree that each Advertiser is an intended third-party beneficiary of the foregoing.
8.2 Liability Waiver
In providing the Service and transmitting Promo Codes through the Barcast Bot, neither Barcast nor any officer, director, employee, shareholder, or agent of Barcast represents or warrants that any Viewer is at least 21 years of age as required by Federal and State laws regarding purchasers of alcoholic beverages. By using the Service, including Promo Codes, You agree to comply with all such laws, and You release, waive, discharge, and covenant not to sue Barcast or its partners from any liability arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom.
8.3 Operator Warranty
You represent and warrant that: (a) You own without restriction, or have obtained license rights, to all content uploaded as Operator Messages, including text, images and video; (b) Operator Messages will not infringe any third party Intellectual Property, publicity, or privacy rights, will not be defamatory, vulgar, pornographic, or obscene, and will comply with any content guidelines provided by Barcast; and (c) Your use of the Service will be in compliance with all applicable laws and regulations.
8.4 Damage Limitations
Except for liability arising or resulting from or related to Your obligations under Section 6.2 and Section 9.2, neither party will be liable to the other for indirect, incidental, consequential, special, or exemplary damages arising from this Agreement, including loss of income, data, profits, or revenue, business interruption, cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and regardless of the theory on which such claim for recovery is based.
9. Term, Termination, and Renewal
9.1 Term
Unless earlier terminated as set forth herein, this Agreement is effective from the date that Barcast first accepts Your application (the "Effective Date") through the first anniversary of the Effective Date. After such time, this Agreement will automatically renew for successive 12-month terms unless either party notifies the other that such party will not renew the Agreement not fewer than 30 days before the end of the then-current term.
9.2 Termination on Notice
Either party may terminate this Agreement for any reason on 30 days' notice to the other.
9.3 Termination on Material Breach
Either party may terminate this Agreement with immediate effect by delivering notice of the termination to the other, if: (a) the non-terminating party commits any material breach or material default in the performance of this Agreement; and (b) the breach or default continues for a period of ten days after the non-terminating party delivers notice to the other reasonably detailing the breach or default. Without limiting the foregoing, in the event that You use the Stick(s) on an unapproved screen without Barcast's prior written consent, or remove any Third-Party Ads or otherwise block the operation of the advertising portion of the Service without giving Barcast appropriate notice of termination, such action will be deemed a material breach of this Agreement.
9.4 Termination on Insolvency
Either party may terminate this Agreement with immediate effect, by giving notice to the other, on the other party's insolvency, bankruptcy, receivership, dissolution, or liquidation.
9.5 Effect of Termination
Upon expiration or termination of this Agreement: (a) You will cease all use of the Service; (b) You will return the Stick(s) to Barcast; and (c) Barcast's obligations relating to the Service will terminate. Sections 3 through 10 will survive expiration or termination of this Agreement.
9.6 Failure to Return upon Termination
If Barcast does not receive the Stick(s) in substantially the same condition as provided to You, Barcast may assess its then-current charge for the Stick(s).
10. General Provisions
10.1 Notice
All notices required or permitted under this Agreement will be in writing and delivered by: (a) confirmed facsimile transmission or email with a delivery receipt, in both cases deemed given upon delivery of confirmation; (b) certified mail, deemed given three days after mailing; or (c) courier or overnight delivery services, deemed given upon receipt. All communications will be sent to a party's then-current address, email address, or facsimile number, as provided in writing to the other party.
10.2 Publicity
Barcast may include Operator's name and logo in Barcast's customer lists and on its website and may issue media releases announcing the relationship and the manner in which Operator will use the Service. Barcast will coordinate its efforts with appropriate communications personnel in Operator's organization to secure approval of media releases if necessary.
10.3 Assignment
You may not assign this Agreement or any of its rights or obligations thereunder without Barcast's prior written consent. Barcast may assign this Agreement or any of its rights and obligations thereunder, effective upon notice to You, (a) to any subsidiary or affiliate; or (b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of Barcast's obligations.
10.4 Successors
This Agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.
10.5 Relationship of Parties
Nothing in the Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties nor to give either party the power to bind the other or to incur obligations on the other's behalf. Except as otherwise provided in Section 9.1, this Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party.
10.6 Force Majeure
- No Liability.
Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations. - Best Efforts to Cure.
In the event of a threatened default or default as a result of any cause beyond its reasonable control, the defaulting party shall nonetheless exercise its best efforts to avoid and cure such default. - Right to Terminate.
In the event such an event prevents performance thereunder for a period in excess of 90 days, then the non-defaulting party may elect to terminate this Agreement by a written notice to the defaulting party.
Barcast may amend the terms and conditions of this Agreement at any time by reasonable notice, including by posting revised terms on its website at http://www.barcast.tv/terms which amended terms and conditions will be binding upon You. Barcast may make changes to this Agreement from time to time. Barcast will provide notification of such changes and make the updated version of this Agreement available at http://www.barcast.tv/terms. If You use or enjoy the benefits of the Service at any time following the date on which Barcast has made the new terms available to You, such use or enjoyment will be deemed acceptance of the updated Agreement. If You do not agree to such new terms, You must discontinue use of the Service and terminate this Agreement by notice to Barcast.
10.8 Waiver
A party's failure to exercise or delay in exercising any right, power, or privilege under this Agreement will not operate as a waiver; nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
10.9 Severability
If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
10.10 Interpretation
- "Including".
As used in this Agreement, the word "including" means "including without limitation." - Number and Gender.
Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. - Headings.
The headings used in this Agreement and its division into sections and other subdivisions do not affect its interpretation.
This Agreement will be governed, construed, and enforced in accordance with the laws of the State of Oregon, without regard to its conflict of laws rules.
10.12 Entire Agreement
This Agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
This Interactive Media Service Agreement is a contract between You and Barcast for your use of the Service. By clicking, "I accept" or by installing or using the Service, You agree to be bound by the terms of this Agreement, including the disclaimers. If you do not agree to these terms, do not install or use the Service.
This Service Agreement (the "Agreement") is a legal agreement between you ("Operator", "You", or "Your") and Barcast ("Barcast").
YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN BEGIN USING THE SERVICE. BY SUBMITTING YOUR APPLICATION TO Barcast, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF ANOTHER PARTY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
1. Hardware, Software, and Service
1.1 Service
Barcast operates a managed media service that delivers content (collectively, the "Barcast Stream") and responds to certain text messages from the public via a bot application (the "Barcast Bot"). The Barcast Bot receives text messages from Your patrons (each, a "Viewer") in response to content that either You or an Advertiser, as defined below, have approved for insertion into the Barcast Steam (collectively, "Viewer Responses") and replies to Viewer Responses with offers, discounts, and similar incentives (each a "Promo Code"). Barcast will provide You with hardware in the form of wireless media storage devices (each a "Stick") and a support alias (the "Alias") where You can request promotional content and/or Promo Codes into the Barcast Stream to be updated (collectively, the "Service").
1.2 Advertising
Barcast will update announcements and similar promotional messages (collectively, "Operator Messages") to the Stick(s) for display upon Operator email request to the Alias. Barcast also contracts with third party advertisers (each, an "Advertiser") to include advertisements in the Barcast Stream (each, a "Third-Party Ad"). Barcast may replace or remove Third-Party Ads at any time.
1.3 Logistics
The Service requires that the Stick(s) remain powered on, connected to a WiFi network and plugged in to Approved Screen(s) operating at an approved Operator Site at all times. You agree to feature the Barcast Stream on said Approved Screen(s) during at least 90% of operating hours. In the event of a Viewer Response to an Operator Message, the Barcast Bot will transmit the promotional code associated with such response to the Viewer. You agree to accept all of Your Promo Codes redeemed by Viewers and to make reasonable efforts to create and upload Operator Messages intended to generate Viewer Responses. Barcast may audit Your use of and access to the Service, including total streaming time of the Service at the Operator Site, total Operator Messages and/or Third-Party Ads displayed, total bandwidth usage, and total uptime, and may suspend Your access to or use of the Service at any time, in its sole discretion, for any improper, unlawful, or otherwise fraudulent use of the Service, or for Your non-compliance with any term of this Agreement or any content guidelines that Barcast may provide to You. To mitigate the risk of a data breach, each Stick will automatically initiate a security update one time per month. The update can take several hours and You agree to not turn off the Stick(s) while the update is being performed. If there are any technical issues with the Stick(s) or the Service, You agree to inform support@barcast.tv immediately.
1.4 Definitions
2. Compensation
2.1 Subscription Fee
The monthly fee for the Operator's access to the Service (the "Subscription Fee") will range from [$0/m] to [$49/m]. The monthly fee for the Operator's use of more than 1 Stick (the "Hardware Fee") will be [$9/m] for each additional Stick. Operator shall pay the monthly Subscription Fee(s) and Hardware Fee(s) in advance for the following one month of the Service, until termination of this Agreement. Subscription Fee(s) and Hardware Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.2 Service Fees
Operator can purchase additional services (the "Service Fees") from Barcast including custom TV content, website creation, website hosting and technical troubleshooting. Service Fee(s) will range from [$49] to [$1,499]. Service Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.3 Failure of Payment
In addition to other remedies available to Barcast, any payment not received by Barcast when due will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the date due until paid. In addition, Operator's failure to pay any amounts due within 30 days of the invoice date will be deemed a material breach of this Agreement, justifying suspension of Operator's use of the Stick(s) and access to the Service, and will be sufficient cause for termination of this Agreement. Any such suspension will not relieve Operator from paying any past due amounts plus interest.
3. License Grant
3.1 Client Access
Barcast hereby grants to You, including Your employees who will have access to the Stick(s), a non-exclusive, non-assignable, royalty-free, worldwide license to access and use the Service subject to the restrictions below in connection with the Service at one Operator Site during the term of this Agreement; provided, however, that the restrictions in this Section 3 will not apply to Operator Content.
3.2 Restrictions
4.1 Retain Ownership of Preexisting Intellectual Property
Except for the rights granted in the License Grant of this Agreement, each party will retain all interest in and ownership of its Intellectual Property existing prior to this Agreement or developed outside the scope of this Agreement.
4.2 Retain Ownership of Licensed Intellectual Property
Barcast and its licensors, as applicable, retain all right, title, and interest in and to the Service, the Stick(s), Third-Party Ads, and the Barcast Stream, and all elements of each of those, including all copyrights, trademarks, patent rights, trade secrets, know-how and any other proprietary rights recognized in any country or jurisdiction in the world, including registrations, applications, renewals, and extensions of such rights therein (collectively, the "Licensed Intellectual Property"). Your use of the Licensed Intellectual Property and any good will accrued is solely for Barcast's benefit.
4.3 Definitions
5.1 Data Ownership
You acknowledge that Barcast may automatically collect a variety of information associated with Viewer Responses, some of which may be associated with individual Viewers or other users of Software Devices associated with such Viewers. To the extent that Barcast collects any Viewer information and data in connection with the Service at Your Operator Site, such information and data will be the sole and exclusive property of Barcast, who in its sole discretion, may market and re-market information about Viewers or data without further obligation to You.
5.2 Privacy Obligations
Both parties recognize the importance of consumer privacy and therefore warrant that in the performance of this Agreement, they will adhere to all applicable privacy laws, regulations, and best practice standards including (a) (Section 5 of the FTC Act prohibiting unlawful or deceptive trade practices, codified at 15 U.S.C. § 45; and (b) the Network Advertising Initiative's (NAI) Self-Regulatory Principles. For Barcast's most current privacy policy, please see its website at http://www.barcast.tv/privacy.
6. Indemnification
6.1 Indemnification by Barcast
If a third party makes a claim against Barcast: (a) that Operator Messages infringe any copyright, trademark, patent, publicity, privacy, or other right, or misappropriate any trade secret; or (b) arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom, You shall defend Barcast and its directors, officers, and employees against the claim at Your expense, and You shall pay all losses, damages, and expenses (including the cost of any investigation and reasonable attorney's fees) finally awarded to such party or agreed to in a written settlement agreement signed by You, to the extent arising from the claim.
7. Mutual Representations
7.1 Authority and Capacity
The parties have the authority and capacity to enter into this Agreement.
7.2 No Restriction
Neither party is under any restriction or obligation that could affect its performance of its obligations under this Agreement.
7.3 No Violation, Breach, or Conflict
Neither party's execution, delivery, and performance of this Agreement and the other documents to which it is a party, and the consummation of the transactions contemplated in this Agreement, do or will result in its violation or breach of any: (a) provision of its certificate of incorporation, certificate of organization, bylaws, operating agreement, or other governing document; (b) applicable Law or Order; or (c) other agreement to which it is a party.
7.4 Execution and Delivery.
The parties have duly executed and delivered this Agreement.
7.5 Enforceability
This Agreement constitutes a legal, valid, and binding obligation, en-forceable against the parties in accordance with its terms.
8. Warranties; Disclaimer; Waiver and Limitation of Liability
8.1 Disclaimer
You assume sole responsibility and liability for Your use of the Service, including any results obtained from such use. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Barcast DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITH RESPECT TO THIRD-PARTY ADS, Barcast DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Barcast EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE OR THIRD-PARTY ADS WILL BE COMPATIBLE WITH OPERATOR SITES, THAT THE OPERATION OF THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Barcast OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that Advertisers will not be liable to You under this Agreement for any claims, damages, losses, liabilities, costs, or expenses (including attorneys' fees) of any kind. You and Barcast hereby agree that each Advertiser is an intended third-party beneficiary of the foregoing.
8.2 Liability Waiver
In providing the Service and transmitting Promo Codes through the Barcast Bot, neither Barcast nor any officer, director, employee, shareholder, or agent of Barcast represents or warrants that any Viewer is at least 21 years of age as required by Federal and State laws regarding purchasers of alcoholic beverages. By using the Service, including Promo Codes, You agree to comply with all such laws, and You release, waive, discharge, and covenant not to sue Barcast or its partners from any liability arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom.
8.3 Operator Warranty
You represent and warrant that: (a) You own without restriction, or have obtained license rights, to all content uploaded as Operator Messages, including text, images and video; (b) Operator Messages will not infringe any third party Intellectual Property, publicity, or privacy rights, will not be defamatory, vulgar, pornographic, or obscene, and will comply with any content guidelines provided by Barcast; and (c) Your use of the Service will be in compliance with all applicable laws and regulations.
8.4 Damage Limitations
Except for liability arising or resulting from or related to Your obligations under Section 6.2 and Section 9.2, neither party will be liable to the other for indirect, incidental, consequential, special, or exemplary damages arising from this Agreement, including loss of income, data, profits, or revenue, business interruption, cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and regardless of the theory on which such claim for recovery is based.
9. Term, Termination, and Renewal
9.1 Term
Unless earlier terminated as set forth herein, this Agreement is effective from the date that Barcast first accepts Your application (the "Effective Date") through the first anniversary of the Effective Date. After such time, this Agreement will automatically renew for successive 12-month terms unless either party notifies the other that such party will not renew the Agreement not fewer than 30 days before the end of the then-current term.
9.2 Termination on Notice
Either party may terminate this Agreement for any reason on 30 days' notice to the other.
9.3 Termination on Material Breach
Either party may terminate this Agreement with immediate effect by delivering notice of the termination to the other, if: (a) the non-terminating party commits any material breach or material default in the performance of this Agreement; and (b) the breach or default continues for a period of ten days after the non-terminating party delivers notice to the other reasonably detailing the breach or default. Without limiting the foregoing, in the event that You use the Stick(s) on an unapproved screen without Barcast's prior written consent, or remove any Third-Party Ads or otherwise block the operation of the advertising portion of the Service without giving Barcast appropriate notice of termination, such action will be deemed a material breach of this Agreement.
9.4 Termination on Insolvency
Either party may terminate this Agreement with immediate effect, by giving notice to the other, on the other party's insolvency, bankruptcy, receivership, dissolution, or liquidation.
9.5 Effect of Termination
Upon expiration or termination of this Agreement: (a) You will cease all use of the Service; (b) You will return the Stick(s) to Barcast; and (c) Barcast's obligations relating to the Service will terminate. Sections 3 through 10 will survive expiration or termination of this Agreement.
9.6 Failure to Return upon Termination
If Barcast does not receive the Stick(s) in substantially the same condition as provided to You, Barcast may assess its then-current charge for the Stick(s).
10. General Provisions
10.1 Notice
All notices required or permitted under this Agreement will be in writing and delivered by: (a) confirmed facsimile transmission or email with a delivery receipt, in both cases deemed given upon delivery of confirmation; (b) certified mail, deemed given three days after mailing; or (c) courier or overnight delivery services, deemed given upon receipt. All communications will be sent to a party's then-current address, email address, or facsimile number, as provided in writing to the other party.
10.2 Publicity
Barcast may include Operator's name and logo in Barcast's customer lists and on its website and may issue media releases announcing the relationship and the manner in which Operator will use the Service. Barcast will coordinate its efforts with appropriate communications personnel in Operator's organization to secure approval of media releases if necessary.
10.3 Assignment
You may not assign this Agreement or any of its rights or obligations thereunder without Barcast's prior written consent. Barcast may assign this Agreement or any of its rights and obligations thereunder, effective upon notice to You, (a) to any subsidiary or affiliate; or (b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of Barcast's obligations.
10.4 Successors
This Agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.
10.5 Relationship of Parties
Nothing in the Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties nor to give either party the power to bind the other or to incur obligations on the other's behalf. Except as otherwise provided in Section 9.1, this Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party.
10.6 Force Majeure
Barcast may amend the terms and conditions of this Agreement at any time by reasonable notice, including by posting revised terms on its website at http://www.barcast.tv/terms">http://www.barcast.tv/terms">http://www.barcast.tv/terms">http://www.barcast.tv/terms which amended terms and conditions will be binding upon You. Barcast may make changes to this Agreement from time to time. Barcast will provide notification of such changes and make the updated version of this Agreement available at http://www.barcast.tv/terms. If You use or enjoy the benefits of the Service at any time following the date on which Barcast has made the new terms available to You, such use or enjoyment will be deemed acceptance of the updated Agreement. If You do not agree to such new terms, You must discontinue use of the Service and terminate this Agreement by notice to Barcast.
10.8 Waiver
A party's failure to exercise or delay in exercising any right, power, or privilege under this Agreement will not operate as a waiver; nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
10.9 Severability
If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
10.10 Interpretation
This Agreement will be governed, construed, and enforced in accordance with the laws of the State of Oregon, without regard to its conflict of laws rules.
10.12 Entire Agreement
This Agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
This Interactive Media Service Agreement is a contract between You and Barcast for your use of the Service. By clicking, "I accept" or by installing or using the Service, You agree to be bound by the terms of this Agreement, including the disclaimers. If you do not agree to these terms, do not install or use the Service.
YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN BEGIN USING THE SERVICE. BY SUBMITTING YOUR APPLICATION TO Barcast, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF ANOTHER PARTY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
1. Hardware, Software, and Service
1.1 Service
Barcast operates a managed media service that delivers content (collectively, the "Barcast Stream") and responds to certain text messages from the public via a bot application (the "Barcast Bot"). The Barcast Bot receives text messages from Your patrons (each, a "Viewer") in response to content that either You or an Advertiser, as defined below, have approved for insertion into the Barcast Steam (collectively, "Viewer Responses") and replies to Viewer Responses with offers, discounts, and similar incentives (each a "Promo Code"). Barcast will provide You with hardware in the form of wireless media storage devices (each a "Stick") and a support alias (the "Alias") where You can request promotional content and/or Promo Codes into the Barcast Stream to be updated (collectively, the "Service").
1.2 Advertising
Barcast will update announcements and similar promotional messages (collectively, "Operator Messages") to the Stick(s) for display upon Operator email request to the Alias. Barcast also contracts with third party advertisers (each, an "Advertiser") to include advertisements in the Barcast Stream (each, a "Third-Party Ad"). Barcast may replace or remove Third-Party Ads at any time.
1.3 Logistics
The Service requires that the Stick(s) remain powered on, connected to a WiFi network and plugged in to Approved Screen(s) operating at an approved Operator Site at all times. You agree to feature the Barcast Stream on said Approved Screen(s) during at least 90% of operating hours. In the event of a Viewer Response to an Operator Message, the Barcast Bot will transmit the promotional code associated with such response to the Viewer. You agree to accept all of Your Promo Codes redeemed by Viewers and to make reasonable efforts to create and upload Operator Messages intended to generate Viewer Responses. Barcast may audit Your use of and access to the Service, including total streaming time of the Service at the Operator Site, total Operator Messages and/or Third-Party Ads displayed, total bandwidth usage, and total uptime, and may suspend Your access to or use of the Service at any time, in its sole discretion, for any improper, unlawful, or otherwise fraudulent use of the Service, or for Your non-compliance with any term of this Agreement or any content guidelines that Barcast may provide to You. To mitigate the risk of a data breach, each Stick will automatically initiate a security update one time per month. The update can take several hours and You agree to not turn off the Stick(s) while the update is being performed. If there are any technical issues with the Stick(s) or the Service, You agree to inform support@barcast.tv immediately.
1.4 Definitions
- Approved Screen
"Approved Screen" means a video display device with the following minimum performance attributes: (1) A location on the Operator Site in one of the primary public areas and within 10 feet of an available power outlet; (2) capability to receive and display a WiFi signal; (3) capability to receive and play an audio signal, either locally or via a distributed sound system; (4) screen size of 32 inches measured from one corner of the screen diagonally across to the opposite corner; (5) an available High-Definition Multimedia Interface ("HDMI") port. - Mobile Device.
"Mobile Device" means an individually addressed and addressable IP-enabled mobile hardware device of a user, excluding a Personal Computer, generally receiving transmission of a program over a transmission system designed for Mobile Devices such as GSM, UMTS, LTE and IEEE802.11 ("WiFi"). - Operator Site.
"Operator Site" means a physical location held open to the public for the conduct of retail business by Operator and at which Operator maintains one or more Software Devices. - Software Device.
"Software Device" means an IP-enabled, uniquely addressable Personal Computer that is: (1) capable of accessing the Internet; provided, however that Mobile Devices will constitute Software Devices solely when transmitting Viewer Responses and receiving Promo Codes through WiFi or a cellular provider; and (2) capable of enforcing the usage restrictions set forth in Section 3.2.
2. Compensation
2.1 Subscription Fee
The monthly fee for the Operator's access to the Service (the "Subscription Fee") will range from [$0/m] to [$49/m]. The monthly fee for the Operator's use of more than 1 Stick (the "Hardware Fee") will be [$9/m] for each additional Stick. Operator shall pay the monthly Subscription Fee(s) and Hardware Fee(s) in advance for the following one month of the Service, until termination of this Agreement. Subscription Fee(s) and Hardware Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.2 Service Fees
Operator can purchase additional services (the "Service Fees") from Barcast including custom TV content, website creation, website hosting and technical troubleshooting. Service Fee(s) will range from [$49] to [$1,499]. Service Fee(s) are non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer, or Credit Card.
2.3 Failure of Payment
In addition to other remedies available to Barcast, any payment not received by Barcast when due will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the date due until paid. In addition, Operator's failure to pay any amounts due within 30 days of the invoice date will be deemed a material breach of this Agreement, justifying suspension of Operator's use of the Stick(s) and access to the Service, and will be sufficient cause for termination of this Agreement. Any such suspension will not relieve Operator from paying any past due amounts plus interest.
3. License Grant
3.1 Client Access
Barcast hereby grants to You, including Your employees who will have access to the Stick(s), a non-exclusive, non-assignable, royalty-free, worldwide license to access and use the Service subject to the restrictions below in connection with the Service at one Operator Site during the term of this Agreement; provided, however, that the restrictions in this Section 3 will not apply to Operator Content.
3.2 Restrictions
- No Distribution, etc.
You may not distribute, license, sell, resyndicate, or loan the Stick(s) or any content contained on, uploaded to, or otherwise available upon or displayed through the Stick(s) or the Service. - No Unapproved Screens.
You may not use the Stick(s) with any screen other than an Approved Screen without Barcast's prior written consent. - No Third-Party Access.
You may not sell, license, or grant any access to or use of the Service to any third party. - No Modification.
You may not modify, alter, or create any derivative works of the Barcast Stream or Third-Party Ads, or remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in any Barcast Stream or Third-Party Ads. - No Reverse Engineering.
You acknowledge that the Service constitutes and contains trade secrets of Barcast and its licensors, and, in order to protect such trade secrets and other interests that Barcast and its licensors may have in the Service, You agree not to reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Stick(s) or the Service, nor permit any third party to do so, except to the extent such restrictions are prohibited by law. - No Copyright Violations.
You may not upload, post, reproduce, distribute, or otherwise transmit by means of the Stick(s) or the Service any information, software, or other material protected by copyright, privacy rights, or any other Intellectual Property right without first obtaining the permission of the owner of such rights.
4.1 Retain Ownership of Preexisting Intellectual Property
Except for the rights granted in the License Grant of this Agreement, each party will retain all interest in and ownership of its Intellectual Property existing prior to this Agreement or developed outside the scope of this Agreement.
4.2 Retain Ownership of Licensed Intellectual Property
Barcast and its licensors, as applicable, retain all right, title, and interest in and to the Service, the Stick(s), Third-Party Ads, and the Barcast Stream, and all elements of each of those, including all copyrights, trademarks, patent rights, trade secrets, know-how and any other proprietary rights recognized in any country or jurisdiction in the world, including registrations, applications, renewals, and extensions of such rights therein (collectively, the "Licensed Intellectual Property"). Your use of the Licensed Intellectual Property and any good will accrued is solely for Barcast's benefit.
4.3 Definitions
- Intellectual Property.
"Intellectual Property" means any of the following in any jurisdiction throughout the world: (1) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing; (2) copyrights, including all applications and registrations related to the foregoing; (3) patents and patent applications; (4) trade secrets and confidential know-how; (5) websites and internet domain name registrations; and (6) other Intellectual Property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing)
5.1 Data Ownership
You acknowledge that Barcast may automatically collect a variety of information associated with Viewer Responses, some of which may be associated with individual Viewers or other users of Software Devices associated with such Viewers. To the extent that Barcast collects any Viewer information and data in connection with the Service at Your Operator Site, such information and data will be the sole and exclusive property of Barcast, who in its sole discretion, may market and re-market information about Viewers or data without further obligation to You.
5.2 Privacy Obligations
Both parties recognize the importance of consumer privacy and therefore warrant that in the performance of this Agreement, they will adhere to all applicable privacy laws, regulations, and best practice standards including (a) (Section 5 of the FTC Act prohibiting unlawful or deceptive trade practices, codified at 15 U.S.C. § 45; and (b) the Network Advertising Initiative's (NAI) Self-Regulatory Principles. For Barcast's most current privacy policy, please see its website at http://www.barcast.tv/privacy.
6. Indemnification
6.1 Indemnification by Barcast
- Barcast Indemnity.
If a third party makes a claim against You that the Barcast Stream, exclusive of any Third-Party Ad, infringes any copyright, trademark, patent, publicity, privacy, or other right, or misappropriates any trade secret, You agree that you will notify Barcast immediately. Upon notification, Barcast shall defend You and Your directors, officers, and employees against the claim at Barcast's expense, and Barcast shall pay all losses, damages, and expenses (including reasonable attorneys' fees) finally awarded to such party or agreed to in a written settlement agreement signed by Barcast, to the extent arising from the claim. - Barcast Indemnity Exclusions.
Barcast will not be liable for any claim arising or resulting from or related to: (1) Operator Messages; (2) Third-Party Ads; (3) the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom; (4) any modification of the Service not authorized by Barcast; or (5) any use of the Service other than in accordance with this Agreement.
If a third party makes a claim against Barcast: (a) that Operator Messages infringe any copyright, trademark, patent, publicity, privacy, or other right, or misappropriate any trade secret; or (b) arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom, You shall defend Barcast and its directors, officers, and employees against the claim at Your expense, and You shall pay all losses, damages, and expenses (including the cost of any investigation and reasonable attorney's fees) finally awarded to such party or agreed to in a written settlement agreement signed by You, to the extent arising from the claim.
7. Mutual Representations
7.1 Authority and Capacity
The parties have the authority and capacity to enter into this Agreement.
7.2 No Restriction
Neither party is under any restriction or obligation that could affect its performance of its obligations under this Agreement.
7.3 No Violation, Breach, or Conflict
Neither party's execution, delivery, and performance of this Agreement and the other documents to which it is a party, and the consummation of the transactions contemplated in this Agreement, do or will result in its violation or breach of any: (a) provision of its certificate of incorporation, certificate of organization, bylaws, operating agreement, or other governing document; (b) applicable Law or Order; or (c) other agreement to which it is a party.
7.4 Execution and Delivery.
The parties have duly executed and delivered this Agreement.
7.5 Enforceability
This Agreement constitutes a legal, valid, and binding obligation, en-forceable against the parties in accordance with its terms.
8. Warranties; Disclaimer; Waiver and Limitation of Liability
8.1 Disclaimer
You assume sole responsibility and liability for Your use of the Service, including any results obtained from such use. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Barcast DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITH RESPECT TO THIRD-PARTY ADS, Barcast DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Barcast EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE OR THIRD-PARTY ADS WILL BE COMPATIBLE WITH OPERATOR SITES, THAT THE OPERATION OF THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Barcast OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that Advertisers will not be liable to You under this Agreement for any claims, damages, losses, liabilities, costs, or expenses (including attorneys' fees) of any kind. You and Barcast hereby agree that each Advertiser is an intended third-party beneficiary of the foregoing.
8.2 Liability Waiver
In providing the Service and transmitting Promo Codes through the Barcast Bot, neither Barcast nor any officer, director, employee, shareholder, or agent of Barcast represents or warrants that any Viewer is at least 21 years of age as required by Federal and State laws regarding purchasers of alcoholic beverages. By using the Service, including Promo Codes, You agree to comply with all such laws, and You release, waive, discharge, and covenant not to sue Barcast or its partners from any liability arising or resulting from or related to the purchase, sale, delivery, and/or consumption of any alcoholic beverage or any consequences which flow therefrom.
8.3 Operator Warranty
You represent and warrant that: (a) You own without restriction, or have obtained license rights, to all content uploaded as Operator Messages, including text, images and video; (b) Operator Messages will not infringe any third party Intellectual Property, publicity, or privacy rights, will not be defamatory, vulgar, pornographic, or obscene, and will comply with any content guidelines provided by Barcast; and (c) Your use of the Service will be in compliance with all applicable laws and regulations.
8.4 Damage Limitations
Except for liability arising or resulting from or related to Your obligations under Section 6.2 and Section 9.2, neither party will be liable to the other for indirect, incidental, consequential, special, or exemplary damages arising from this Agreement, including loss of income, data, profits, or revenue, business interruption, cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and regardless of the theory on which such claim for recovery is based.
9. Term, Termination, and Renewal
9.1 Term
Unless earlier terminated as set forth herein, this Agreement is effective from the date that Barcast first accepts Your application (the "Effective Date") through the first anniversary of the Effective Date. After such time, this Agreement will automatically renew for successive 12-month terms unless either party notifies the other that such party will not renew the Agreement not fewer than 30 days before the end of the then-current term.
9.2 Termination on Notice
Either party may terminate this Agreement for any reason on 30 days' notice to the other.
9.3 Termination on Material Breach
Either party may terminate this Agreement with immediate effect by delivering notice of the termination to the other, if: (a) the non-terminating party commits any material breach or material default in the performance of this Agreement; and (b) the breach or default continues for a period of ten days after the non-terminating party delivers notice to the other reasonably detailing the breach or default. Without limiting the foregoing, in the event that You use the Stick(s) on an unapproved screen without Barcast's prior written consent, or remove any Third-Party Ads or otherwise block the operation of the advertising portion of the Service without giving Barcast appropriate notice of termination, such action will be deemed a material breach of this Agreement.
9.4 Termination on Insolvency
Either party may terminate this Agreement with immediate effect, by giving notice to the other, on the other party's insolvency, bankruptcy, receivership, dissolution, or liquidation.
9.5 Effect of Termination
Upon expiration or termination of this Agreement: (a) You will cease all use of the Service; (b) You will return the Stick(s) to Barcast; and (c) Barcast's obligations relating to the Service will terminate. Sections 3 through 10 will survive expiration or termination of this Agreement.
9.6 Failure to Return upon Termination
If Barcast does not receive the Stick(s) in substantially the same condition as provided to You, Barcast may assess its then-current charge for the Stick(s).
10. General Provisions
10.1 Notice
All notices required or permitted under this Agreement will be in writing and delivered by: (a) confirmed facsimile transmission or email with a delivery receipt, in both cases deemed given upon delivery of confirmation; (b) certified mail, deemed given three days after mailing; or (c) courier or overnight delivery services, deemed given upon receipt. All communications will be sent to a party's then-current address, email address, or facsimile number, as provided in writing to the other party.
10.2 Publicity
Barcast may include Operator's name and logo in Barcast's customer lists and on its website and may issue media releases announcing the relationship and the manner in which Operator will use the Service. Barcast will coordinate its efforts with appropriate communications personnel in Operator's organization to secure approval of media releases if necessary.
10.3 Assignment
You may not assign this Agreement or any of its rights or obligations thereunder without Barcast's prior written consent. Barcast may assign this Agreement or any of its rights and obligations thereunder, effective upon notice to You, (a) to any subsidiary or affiliate; or (b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of Barcast's obligations.
10.4 Successors
This Agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.
10.5 Relationship of Parties
Nothing in the Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties nor to give either party the power to bind the other or to incur obligations on the other's behalf. Except as otherwise provided in Section 9.1, this Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party.
10.6 Force Majeure
- No Liability.
Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations. - Best Efforts to Cure.
In the event of a threatened default or default as a result of any cause beyond its reasonable control, the defaulting party shall nonetheless exercise its best efforts to avoid and cure such default. - Right to Terminate.
In the event such an event prevents performance thereunder for a period in excess of 90 days, then the non-defaulting party may elect to terminate this Agreement by a written notice to the defaulting party.
Barcast may amend the terms and conditions of this Agreement at any time by reasonable notice, including by posting revised terms on its website at http://www.barcast.tv/terms">http://www.barcast.tv/terms">http://www.barcast.tv/terms">http://www.barcast.tv/terms which amended terms and conditions will be binding upon You. Barcast may make changes to this Agreement from time to time. Barcast will provide notification of such changes and make the updated version of this Agreement available at http://www.barcast.tv/terms. If You use or enjoy the benefits of the Service at any time following the date on which Barcast has made the new terms available to You, such use or enjoyment will be deemed acceptance of the updated Agreement. If You do not agree to such new terms, You must discontinue use of the Service and terminate this Agreement by notice to Barcast.
10.8 Waiver
A party's failure to exercise or delay in exercising any right, power, or privilege under this Agreement will not operate as a waiver; nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
10.9 Severability
If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
10.10 Interpretation
- "Including".
As used in this Agreement, the word "including" means "including without limitation." - Number and Gender.
Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. - Headings.
The headings used in this Agreement and its division into sections and other subdivisions do not affect its interpretation.
This Agreement will be governed, construed, and enforced in accordance with the laws of the State of Oregon, without regard to its conflict of laws rules.
10.12 Entire Agreement
This Agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
This Interactive Media Service Agreement is a contract between You and Barcast for your use of the Service. By clicking, "I accept" or by installing or using the Service, You agree to be bound by the terms of this Agreement, including the disclaimers. If you do not agree to these terms, do not install or use the Service.