Enplug Terms and Conditions
End User License Agreement
Spectrio, LLC . (“SPECTRIO”) is a Delaware limited liability corporation based in the United States of America that owns and provides software for the streaming of digital signage content (the “Software”).
Under an agreement with SPECTRIO, ENPLUG AUSTRALIA PTY LTD (“ENPLUG”) is exclusively entitled to licence the Software within Australia and New Zealand, and pursuant to the terms of this Agreement
(“Agreement”), ENPLUG is licensing the Software to USER for use in the Territory as defined in the LICENCE DETAILS of this Agreement (“LICENCE DETAILS”)
On the terms and conditions of this Agreement:
1) ENPLUG is licensing the Software to USER for the Term in the form of a “sub-licence”. A sub-licence is defined as one collection of unique content shown on a display.
2) ENPLUG grants the USER the ability to customise the social media content and upload graphics to be shown on the equipment
3) USER agrees to licence the Software from ENPLUG,
4) USER agrees to purchase the equipment and services from ENPLUG, all of which are specified within the LICENCE DETAILS, and the USER shall pay for such purchase(s) separately and distinctly (isolated from the fee payable for the Software) and in addition to the fees payable to ENPLUG for the licence of the Software;
5) Agrees to make payments to ENPLUG as set out in this Agreement
1. Limited User License; Restrictions
For purposes of this Agreement:
“Content” means the audio and visual information, graphics, text, images, music, software and documents made available in the course of using the Software.;
“Term” means the period commencing on the Licence Start Date in the LICENCE DETAILS
ENPLUG hereby grants USER a limited, non-exclusive, non-transferable, non-assignable licence to use the Software in the Territory for the Term, subject to all the terms and conditions of this Agreement. All rights not expressly granted to USER are reserved by ENPLUG and its licensors. USER shall not:
• use (including making any copies of) the Software beyond the scope of the licence granted herein;
• make use of the Software on more than one computer at a time, without prior purchases of additional licences;
• rent, lease, lend, sell, resell, sublicence, transfer, assign, share, publish, distribute, commercially exploit or make available the Software in any manner whatsoever, to any other third party;
• modify, adapt, translate, create derivative works or improvements based upon any part of the Software other than what may be used in accordance with this Licence;
• reverse engineer, decompile, disassemble, copy, create derivative works, or otherwise modify the Software, any updates, or any part thereof, nor attempt to locate or obtain its source code;
• alter or remove any trademark, copyright or other proprietary notice of ENPLUG contained within the Software;
• use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to ENPLUG’s commercial disadvantage;
• build or create a competitive software product or service using similar ideas, features, functions or graphics of the Software or copy any such ideas, features, functions or graphics of the Software;
• combine the Software or any part thereof with, or incorporate the Software or any part thereof, in any other software or programs;
• use the Software in violation of any foreign, federal, state or local law, regulation or rule;
• or make use of the Software in any manner not stipulated within this Agreement or the documentation accompanying the Software.
USER agrees not to use the Software to stream or show Content that is defamatory, obscene, indecent, violently graphic, or discriminatory against any class of persons.
2. Payments Terms
Fees payable by USER for the Software are set out in the LICENCE DETAILS section of this Agreement. USER is responsible for paying for all specified fees and agrees to pay ENPLUG on the date that the fees are due. Each USER’s billing history and record of all transactions are provided through such USER’s account via ENPLUG’s website. ENPLUG reserves the right to modify its fees and charges and introduce new charges at any time, however such fee changes will not apply during the then current term of the Agreement and shall apply when this Agreement is renewed for the subsequent term .
In the event USER has ordered any equipment, USER agrees to pay all equipment related fees on the order date, including, if applicable, all installation fees.
All fees are exclusive of GST and any other applicable federal or state sales or use taxes. USER is solely responsible for paying all such taxes and government charges.
To the fullest extent permitted by law, except as set out in this Agreement, refunds of fees by ENPLUG (if any) are solely at the discretion of ENPLUG. Nothing in this Agreement requires ENPLUG to extend credit to USER.
USER agrees to provide ENPLUG with a valid credit card and complete and accurate billing and contact information and hereby authorises ENPLUG to deduct monthly fees and other charges against such credit
card. This information includes such USER’s legal company or individual name, street address, e-mail address, and name and telephone number of an authorised billing contact or credit card holder, and any other information required by ENPLUG to enable the monthly fees and other charges to be deducted against such credit card . USER agrees to update all such credit card and other billing and contact information within three (3) business days of any change to it. USER represents and warrants to ENPLUG that any credit card provided to ENPLUG is authorised by such USER individually or by USER’s company for use by ENPLUG
as provided herein and will not be rejected. If ENPLUG is unable for any reason to bill or process any credit card charges, ENPLUG will take commercially reasonable efforts to contact you by email and notify
you to provide another credit card to ENPLUG; provided, however, that USER agrees that ENPLUG may suspend USER’s account during such time until USER provides another credit card and USER’s charges
are processed and paid in full. If any credit card, billing or contact information provided by any USER is false or fraudulent, ENPLUG, in addition to any remedies available by law, reserves the right to immediately
terminate USER’s access to the Software without notice.
If USER defaults in payment of any monies to ENPLUG, interest at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) upon any monies overdue during the period of default
shall be paid by USER to ENPLUG, such interest to be calculated on a daily basis and payable at the end of each week (“week” being Monday to Sunday) and during the period whilst such default is subsisting. ENPLUG may, in its discretion, capitalise any unpaid interest at the end of each week and interest is thereafter also payable on such capitalised amount to ENPLUG.
3. Term; Termination
If USER selected the annual upfront payment option, this Agreement shall be automatically renewed on the anniversary of the Licence Start Date and on each anniversary thereafter for an additional term of one year (each, a “Renewal Term”), with each Renewal Term subject to termination as provided herein.
USER may terminate this Agreement by giving at least one (1) month prior written notice to ENPLUG and the Agreement shall terminate at the expiration of such notice period, provided however and subject to:
1. USER must pay to ENPLUG at least six (6) month’s licence fees before the termination is effective;
2. If USER has an annual subscription and has paid the total annual licence fees in advance, ENPLUG shall refund to USER the fees for the balance of the Term following termination up to a maximum of six (6)
months’ fees. For the purposes of clarity and by way of example only, if USER has paid the total licence fees on 1 January and gives one (1) month’s notice to terminate:-
(a) on 1 March in the same year, then as the termination will be effective on 1 April in the same year the USER is entitled to a refund of (six) 6 months’ licence fees; or
(b) on 1 September in the same year, then as the termination will be effective on 1 October in the same year the USER is entitled to a refund of fees for the balance of the Term, namely 3 months’ licence fees.
ENPLUG may terminate this Agreement by giving at least
one (1) month prior written notice to ENPLUG and the Agreement shall terminate at the expiration of such notice period. ENPLUG shall refund to USER any fees paid in advance by USER to ENPLUG for all or part ofthe balance of the Term following termination
Upon any default by USER of this Agreement which is not remedied in full within five (5) business days of written notice from ENPLUG to USER of such default, ENPLUG may, in its sole discretion,
- immediately suspend USER’s access and use of the Software at any time thereafter without notice to USER until the default is remedied in full to the satisfaction of ENPLUG, and if such default is so remedied ENPLUG shall reactivate USER’s access and use of the Software as soon as reasonably and commercially practicable;
2. at any time before the default is remedied terminate this Agreement by giving written notice to USER to this effect.
On termination of this Agreement for any reason whatsoever, all provisions of this Agreement, with the exception of the ENPLUG’s grant of the licence to USER herein, shall remain in full force and effect and shall survive termination. Upon termination of this Agreement, USER shall, at the option of ENPLUG, return to ENPLUG or destroy any and all copies of the Software and provide evidence to the satisfaction of ENPLUG that any and all copies of the Software have been returned or destroyed. ENPLUG may (in addition to all other rights that ENPLUG may have) recover from USER all losses, costs and expenses of whatsoever nature that ENPLUG suffers, incurs or sustains as a result of such termination.
4. Representations and Warranties
By signing or clicking your consent to this Agreement, USER represents and warrants that it has the legal power and authority to enter into this Agreement (including on behalf of the business entity for whom the
signatory is an agent, employee or representative). USER represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Software and that USER’s credit card
and billing information is complete and accurate. USER represents and warrants that it shall: (i) notify ENPLUG immediately of any unauthorised use of any password or account or any other known breach of security with respect to such passwords and accounts; (ii) report to ENPLUG immediately and use reasonable efforts to stop immediately any unauthorised copying or distribution of Content that is known or
suspected by USER; and (iii) not impersonate another user or provide false identity information to gain access to or use the Software.
5. Intellectual Property
ENPLUG has the rights in the Territory to all rights, title and interest, including all related Intellectual Property Rights in and to Software. This Agreement is not a sale and does not convey to USER any rights of
ownership in or related to the Software or the Intellectual Property Rights owned by ENPLUG. The ENPLUG name, the ENPLUG logo, and the product names associated with the Software are trademarks of ENPLUG or third parties, and no right or licence is granted to USER to use them. USER agrees to use commercially reasonable efforts to safeguard the Software from infringement, misappropriation, theft, misuse or
unauthorised access. For purposes of this Agreement, “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names,
domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
6. Collection and Use of Information
ENPLUG may, directly or indirectly, through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is
accessed and used. USER agrees that ENPLUG may use such information for any purpose related to any use of the Software by USER, including but not limited to, (i) improving the performance of the Software or
developing upgrades; and (ii) verifying compliance with the terms of this Agreement and enforcing ENPLUG’s rights, including all Intellectual Property Rights in and to the Software.
7. User Privacy
may be provided by e-mail. Since the Software is a hosted, online application, ENPLUG reserves the right to notify all USERS of the Software of important announcements regarding the operation of the Software via e-mail.
8. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY ALL APPLICABLE LOCAL, STATE, FEDERAL AND FOREIGN LAWS AND REGULATIONS (COLLECTIVELY “APPLICABLE LAW”), ENPLUG AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY,
ACCURACY, OR COMPLETENESS OF THE SOFTWARE OR ANY EQUIPMENT USED IN CONNECTION WITH THE SOFTWARE (“EQUIPMENT”). ENPLUG AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE OR EQUIPMENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SOFTWARE OR EQUIPMENT WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS, (C)
ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE SOFTWARE OR EQUIPMENT WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, (F) THE ADDITIONAL COSTS INCURRED TO USE THE SOFTWARE OR EQUIPMENT WILL
NOT EXCEED A CERTAIN AMOUNT OF MONEY, OR (G) THE SOFTWARE, EQUIPMENT OR THE SERVER(S) THAT MAKE THE SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND EQUIPMENT IS PROVIDED TO USER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY
QUALITY, NON-FRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY DISCLAIMED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BY ENPLUG AND ITS LICENSORS.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL ENPLUG’S AGGREGATE LIABILITY TO USER UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY USER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL ENPLUG OR ITS LICENSORS BE LIABLE TO USER FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE. IN NO EVENT SHALL ENPLUG OR ITS LICENSORS BE LIABLE TO USER FOR ANY INDIRECT, PUNITIVE, SPECIAL,
EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE USE ORINABILITY TO USE THE SOFTWARE OR EQUIPMENT, ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE OR EQUIPMENT, THE AMOUNT OR COST OF THE DATA REQUIRED TO USE THE SOFTWARE OR EQUIPMENT, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ENPLUG HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ENPLUG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. CERTAIN STATES AND/OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY
FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, AND TO THAT EXTENT, THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO USER.
USER shall defend, indemnify and hold harmless ENPLUG, its officers, directors, shareholders, agents and employees from and against the full amount of any and all Losses (defined below) incurred as a result of (a)
USER’s use of the Software, (b) USER’s violation of applicable law, or (c) any actual or alleged death of or injury to any person suffered arising out of USER’s use of the Software, unless caused by ENPLUG’s gross
negligence or willful misconduct, provided that ENPLUG (i) promptly gives USER written notice of any claim, (ii) gives USER sole control of the defence and settlement of such claim (provided that USER may not
settle or defend any claim unless it unconditionally releases ENPLUG of all liability), and (iii) has not compromised or settled such claim. For purposes of this Agreement, “Losses” means any and all losses,
claims, damages, liabilities or actions or proceedings with respect thereto or expenses, including, but not limited to all legal expenses and any and all other expenses incurred in investigating, preparing, serving as a
witness in or defending against, any action or proceeding, commenced or threatened, which a party may be subject to (whether or not such party is named as a party) which arise out of or are related to the subject
matter of this Agreement.
Each party that receives Confidential Information (a “Recipient”) from the other party (a “Disclosure”) agrees not to use any Confidential Information (as defined below) for Recipient’s own use or for any
purpose other than to carry out the subject matter of this Agreement. Recipient shall not disclose any Confidential Information of Discloser to third parties. Recipient agrees to take all reasonable measures to
protect the secrecy of and avoid disclosure or use of Confidential Information of Disclosure in order to prevent it from falling into the public domain or the possession of persons other than those persons
authorised hereunder to have any such information. Recipient further agrees to notify Disclosure in writing of any actual or suspected misuse, misappropriation or unauthorised disclosure of Discloser’s Confidential
Information which may come to Recipient’s attention. “Confidential Information” means any information, technical data or know-how, including, but not limited to, information relating to business and product or service plans, financial projections, customer lists, business forecasts, sales and merchandising, human resources, patents, patent applications, computer object or source code, research, inventions, processes,
designs, drawings, engineering, marketing or finance to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
Confidential Information does not include information, technical data or know-how which: (i) is in the possession of Recipient at the time of disclosure, as shown by Recipient’s files and records immediately
prior to the time of disclosure; or (ii) becomes part of the public knowledge or literature, not as a direct or indirect result of any improper inaction or action of Recipient.
12. Compliance with Law
USER represents, warrants and covenants that USER’s use of the Software and any services will comply with all Applicable Laws, including but not limited to those related to copyright, trademark, data privacy, international communications and the transmission of technical or personal data. USER shall be responsible for determining whether the Software and any services are suitable for USER’s use in light of all such Applicable Law. If USER is subject to any Applicable Law and uses the Software, ENPLUG shall not be liable if the Software doesn’t meet the requirements of Applicable Law.
This Agreement constitutes the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements or
conditions, express or implied, written or oral, between the parties.
If any provision of this Agreement offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
(a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
(b) in any other case the offending provision must be severed from this Agreement in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.
This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto.
USER shall have no right to (a) assign this Agreement, by operation of law or otherwise, or (b) subcontract or delegate the performance of its obligations under this Agreement without ENPLUG’s prior written consent which may be withheld by ENPLUG in its sole discretion. Any such purported assignment, subcontract or delegation shall be void.
ENPLUG shall have the right to (a) assign or transfer this Agreement, by operation of law or otherwise, or (b) subcontract or delegate the performance of all or part of its obligations under this Agreement, to any third party without USER’s prior written consent
This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, Australia without regard to its choice of law principles. The parties consent to exclusive jurisdiction and venue in the federal and state courts sitting in Victoria Australia.
In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and other expenses. However, in the event of a dispute between the parties hereto with respect to this Agreement, the parties agree to first attempt to resolve the dispute by mediation.
No third party is intended to be, and no third party shall be, a third party beneficiary of this Agreement.
The parties hereto are independent contractors and shall not be deemed to be agents, representatives, joint venturers or partners of the other party.
The parties agree that the words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
USER agrees that ENPLUG may use USER’s business name, business address, logos, content, and other venue related information in ENPLUG marketing materials including, but not limited to, physical printouts, digital
advertising and promotional materials.
This Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.