THIS TRIAL AGREEMENT AND END USER LICENSE AGREEMENT (hereinafter “Agreement”) is an agreement between you, an individual, organization or commercial entity (hereinafter “Licensee”) and Lisnr, Inc., a Delaware corporation (“LISNR”) for the Radius product, which includes the LISNR® SDK, a machine-readable program code that allows devices on which it is installed and enabled to accept and read the wireless transmission of content by means of a proprietary signal (Inaudible Smart Tone or “Tone”), that may be made available to Licensee by LISNR as described in Licensee’s Order (defined in Section 1 below), together with any updates or upgrades relating to the foregoing (collectively, the “Radius Product”). The Radius Product may also include any electronic documentation, associated media, website services, printed documentation and other printed materials which are downloaded with the above-described Radius Product. LISNR and Licensee are each a “Party” and shall be collectively referred to as the “Parties”.
TRIAL INSTALLATION: In the event that Licensee accesses the Radius Product (i) by installing the Radius Product for use on a trial basis (a “Trial Installation”) or (ii) via a demonstration of the Radius Product, the terms of this Agreement shall apply. Unless otherwise agreed in an Order, the duration of any Trial Installation shall begin on the date that Licensee first accesses the LISNR portal (the “Portal Access Date”) and ends thirty (30) days after thereafter (such period, the “Trial Period”). Upon the expiration of the Trial Period, Licensee’s access to the Radius Product will be terminated. In the event that the Trial Period is extended for any reason with the consent of LISNR, the terms of this Agreement will continue to apply for the duration of any extension of the Trial Period. By downloading, installing, copying, purchasing or otherwise using the Radius Product or any updates to the Radius Product, Licensee agrees to the terms of this Agreement, and if Licensee does not agree to the terms of this Agreement in their entirety, (i) Licensee shall not purchase, download, install or use the Radius Product, and (ii) shall terminate the installation process immediately and completely remove the Radius Product including all program files, installation files, ancillary files, documentation files and any other Radius Product files from all Licensee’s computer or other hardware systems on which they are installed.
1. LICENSE GRANT
Subject to Licensee’s compliance with all terms and conditions of this Agreement and Licensee’s Order, LISNR hereby grants Licensee a non-exclusive, non-transferable limited-use license to download and use the Radius Product for Licensee’s internal business purposes. “Order” means the document evidencing Licensee’s purchase or Trial Installation of the Radius Product, as applicable, and any subsequent order forms, whether in written form or via a webpage, agreed to in writing by LISNR. The term of Licensee’s license shall be for the initial term listed in Licensee’s Order (the “Initial Term”) and shall renew pursuant to the terms of Licensee’s Order. If the length of the Initial Term is not listed in Licensee’s Order, it will be thirty (30) days from Licensee’s Portal Access Date and it shall not automatically renew.
2. LICENSE PERMISSIONS AND RESTRICTIONS
2.1. LISNR SDK
Subject to Licensee’s compliance with all terms and conditions of this Agreement and Licensee’s Order, LISNR SDK may be used by, for or on behalf of, Licensee and/or its Affiliates on an unlimited number of computer or mobile hardware systems (hereinafter “Systems”) and may be incorporated into Licensee’s software applications (“Licensee’s Software”). “Affiliate” means a corporation or other entity which is directly or indirectly controlled by a party or which controls a party or is under common control with a party; corporations or other entities which are Affiliates of the same corporation or other entity shall be deemed to be Affiliates of each other.
As between the parties, Licensee is the owner of all proprietary rights, including but not limited to copyrights in Licensee’s Software and Systems, and any other work product created by Licensee as part of Licensee’s Software and Systems, except that LISNR retains all ownership, title, rights and interest in and to the LISNR SDK and Radius Product, or any addition, modifications and improvements thereof developed by LISNR or Licensee as part of incorporating the LISNR SDK into Licensee’s Software or Systems. Licensee’s right to use the LISNR SDK as part of Licensee’s Software and/or Systems is subject to the terms of this Agreement. For the avoidance of doubt, Licensee agrees that it shall have no right to use or copy the LISNR SDK, whether or not it is incorporated into Licensee’s Software or Systems, without a valid license from LISNR.
2.2 LISNR API
Subject to Licensee’s compliance with all terms and conditions of this Agreement and Licensee’s Order, the LISNR API may be used by, or on behalf of, Licensee and/or its Affiliates on an unlimited number of Systems. The LISNR API may not be reproduced, altered or used for any purpose not expressly provided under this Agreement.
2.3 RESTRICTIONS
Licensee shall not (i) make any claim or representation of Licensee’s ownership or deny or challenge any claim of LISNR’s ownership of the Radius Product; (ii) make adaptations or derivative works of the Radius Product except to incorporate the LISNR SDK into Licensee’s Software and/or Systems pursuant to the terms of this Agreement and Licensee’s Order; (iii) examine, disclose, copy, modify, disassemble, decompile, decode, reverse engineer, emulate, visually display or reduce the Radius Product; (iv) unless otherwise agreed to by the Parties under a separate agreement and only pursuant to such agreement, sell, assign, transfer, sub-license, sublease, distribute or disclose the Radius Product, or any portion of the Radius Product, to any other person corporation or other entity which is not an Affiliate of Licensee; or (v) take any other act which jeopardizes LISNR’s rights or interests in the Radius Product.
2.4 Encryption and Export Regulations
The Radius Product may be subject to export control laws, including but not limited to the U.S. Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Radius Product to, or make the Radius Product accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules (including any VAT or other taxes) prior to exporting, re-exporting, releasing, or otherwise making the Radius Product available outside the United States.
The Radius Product may contain encryption features that are subject to domestic and international export control laws and regulations, including those of the United States and other applicable jurisdictions. Unless otherwise expressly agreed in Licensee’s Order, if Licensee intends to use any encryption features of the Radius Product, or any other encryption features within the Licensee Software, the Licensee shall provide written notice to the Licensor at least sixty (60) days prior to such use.
3. INDEMNIFICATION
LISNR agrees to indemnify and hold Licensee harmless from and against any third party claims, liabilities, costs, and expenses (“Losses”) in connection with a claim that the Radius Product infringes on any third-party’s U.S. patent, trademark or copyrights, or other U.S. intellectual property rights. However, LISNR will have no liability to Licensee for Losses or any claim arising out of or related to Licensee’s use of the Radius Product that arises from or is related to (i) the combination of the Radius Product with Licensee’s Software or Systems or any other product or service not approved or supplied by LISNR, (ii) modification of the Radius Product by or on behalf of Licensee, (iii) Licensee’s violation of this Agreement, (iv) any accident, abuse, misapplication, abnormal or unauthorized access or use, or introduction of a virus or malicious code by a person or entity other than LISNR.
Licensee hereby agrees to indemnify, defend and hold LISNR and its Affiliates, and their respective equity holders, officers, directors, employees, agents, successors, and assigns of any of them harmless from and against any and all Losses arising from or related to (i) Licensee’s Software and/or Systems; and/or (ii) Licensee’s breach of this Agreement or any other misuse of the Radius Product, whether accidental or deliberate.
4. OWNERSHIP OF RADIUS PRODUCT
Licensee acknowledges and agrees that (i) the Radius Product including all standard releases and updates thereof and any related patents, trademarks, copyrights, trade secrets or other proprietary information technologies methodologies or software architecture are the exclusive and commercially valuable proprietary products and intellectual property of LISNR; (ii) LISNR has invested substantial time and economic resources in the design and development of the Radius Product, which required the efforts of skilled software development experts and (iii) LISNR treats the Radius Product trade secrets of LISNR and confidential regardless of whether the Radius Product is or may be copyrighted or patented. Title, full ownership and all proprietary rights to the Radius Product shall remain with LISNR and the Licensee shall have no right, title or interest to the Radius Product except as expressly set forth in this Agreement and Licensee’s Order.
5. DISCLAIMER OF WARRANTIES
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RADIUS PRODUCT AND DOCUMENTATION ARE PROVIDED “AS IS” AND LISNR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSEE MAKES NO WARRANTY OF ANY KIND THAT THE RADIUS PRODUCT AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
6.LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LISNR AND/OR ITS AFFILIATES, SUPPLIERS, OR LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND/OR THE USE OF OR INABILITY TO USE THE RADIUS PRODUCT, EVEN IF LISNR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LISNR’S TOTAL AGGREGATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE RADIUS PRODUCT, AND LICENSEE’S USE THEREOF, SHALL NOT EXCEED (I) THE TOTAL FEE PAID TO LISNR BY LICENSEE (WHETHER DIRECTLY OR THROUGH A THIRD PARTY) DURING THE 12 MONTHS PRECEDING THE CLAIM OR (II) ONE HUNDRED DOLLARS ($100 USD), WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF LISNR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. TERMINATION
This Agreement may be terminated by LISNR at any time for cause, effective immediately upon LISNR’s notice to Licensee. For the purposes of this Agreement, “cause” shall be defined as Licensee’s breach or alleged breach of any term of this Agreement including, but not limited to, the failure to pay fees due in connection with the services. For the avoidance of doubt, if LISNR deems, in LISNR’s sole discretion, that Licensee is in breach of any of Licensee’s obligations under this Agreement, LISNR may immediately suspend the license granted to Licensee under this Agreement. Unless otherwise agreed to by the parties under a separate agreement, this Agreement may be terminated by LISNR at any time, without cause, upon thirty (30) days’ written notice to Licensee. In the event that LISNR terminates this Agreement without cause, LISNR shall refund to Licensee any payments made prepaying Licensee’s use of the Radius Product beyond the termination of this Agreement but, for the avoidance of doubt, Licensee shall not be refunded any payments of Licensee’s use of the Radius Product prior to the termination of this Agreement. Licensee may terminate this Agreement if LISNR materially breaches this Agreement, provided that Licensee shall provide written notice of such breach and LISNR shall have thirty (30) days to cure.
8. AGREEMENT PREVAILS
Except as specifically agree to in writing by the Parties, by specifically referencing this provision, the terms and conditions of this Agreement and Licensee’s Order shall prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Licensee with respect to the Radius Product.
9. FORCE MAJEURE
Except for payment obligations, neither party to this Agreement shall be liable or deemed in default for any delay, failure in performance or interruption of service under this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of a public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, nor any element of any other cause beyond the reasonable control of such party.
10. MODIFICATION
THIS AGREEMENT MAY BE MODIFIED BY LISNR FROM TIME TO TIME. ANY AMENDMENT WILL BECOME EFFECTIVE UPON NOTIFICATION TO LICENSEE (BY EMAIL OR BY CONSPICUOUSLY PUBLISHING NOTICE ON OUR SITE). IF LICENSEE DOES NOT AGREE TO SUCH MODIFICATION(S), LICENSEE MUST STOP USING THE RADIUS PRODUCT. ANY DOWNLOAD, PURCHASE AND/OR USE OF RADIUS PRODUCT BY LICENSEE FOLLOWING ANY MODIFICATION OF THIS AGREEMENT SHALL SERVE AS LICENSEE’S AGREEMENT TO SUCH MODIFICATION.
11. INJUNCTIVE RELIEF
The Parties acknowledge and agree that either Party’s unauthorized disclosure or use of the other Party’s confidential information or Licensee’s violation of the terms of this Agreement or Order would cause irreparable harm and significant injury which may be difficult to ascertain. Accordingly, each Party agrees that the other Party shall have the right to seek an immediate injunction in respect of any such breach of this Agreement without requiring such Party to post bond to obtain such relief.
In addition to the remedies contained herein or which may otherwise be available to LISNR in law or equity, in the event of Licensee’s breach or alleged breach of its obligations under Section 2 , Licensee shall pay an additional fee directly to LISNR the amount of which shall be the greater of: (i) the total fee paid to LISNR by Licensee (whether directly or through a third party) or (ii) $50,000.
12. MISCELLANEOUS
This Agreement shall be governed solely by the laws of the State of Ohio, U.S.A. Licensee may not assign or delegate its obligations under this Agreement without the prior written consent of LISNR, and any assignment or delegation in violation of the foregoing is void. The failure of either party hereto to insist upon the performance of any of the terms or conditions contained in this Agreement, and the failure of either party hereto, to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful void or unenforceable the provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way effect any other circumstances of or the validity or enforcement of this Agreement. Unless otherwise agreed in Licensee’s Order, LISNR shall treat any personal information transferred via the Radius Product, as well as any user information collected via its user registration forms, in accordance with the terms of its then-current privacy policy available on www.lisnr.com.