Hardware and Software Terms of Service

TotalMedia Inc.

These TotalMedia Hardware and Software Terms of Service (“Agreement”) outline the rules for buying and using our Products and Services. This is a contract between TotalMedia, Inc. (“TotalMedia”, “we,” “us,” or “our”) and you or the organization you represent (“you” or “your”). The Agreement starts when you place a purchase order for Products or Services (the “Effective Date”). By agreeing, you confirm that you are legally able to enter into contracts (e.g., you are not a minor). If you are signing on behalf of an organization, you confirm that you have the authority to bind that organization to the Agreement.

1. Sales Quotations and Orders

The prices listed in your sales quotation remain valid until the specified expiration date. To cancel a purchase order for Hardware, a written notice must be provided at least 30 days prior to shipment.

2. Incoterms; Delivery and Returns; and Acceptance of Products

2.1. Incoterms for Deliveries and Returns

Unless otherwise directed in writing by TotalMedia, the Incoterms are: (a) for deliveries of Hardware, CPT (Incoterms 2020) to your named place of destination; and (b) for returns of Hardware, DDP (Incoterms 2020) to TotalMedia's place of business or designated location. You will be the importer of record and will be responsible for obtaining any necessary licenses or other authorizations.

2.2. Title; Risk of Loss

TotalMedia retains the title to Software; Software is only licensed, not sold, to you. Unless instructed otherwise in writing by TotalMedia, all ownership and risk of loss for sold Hardware will transfer as follows: (a) for hardware deliveries, to you when the hardware is received by the first carrier from TotalMedia; and (b) for Hardware returns, to TotalMedia upon acceptance. You are solely responsible for arranging insurance for all shipments at your own expense.

2.3. Delivery Dates

Delivery dates on any order or order acknowledgment are estimates only, and in no event will we be liable for any losses resulting from any delay in delivery.

2.4. Acceptance

Upon delivery, you will be deemed to have accepted the delivered Products. You may reject or return delivered Product only if you give us notice within 30 days of delivery that the Product does not materially conform to the specifications set forth in the purchase order and Documentation. If you reject Products for cause, we have the right to either replace the Products or cancel the sale.

2.5. Export Control

You will comply with all applicable export, import, re-export, re-import, sanctions, and antiboycott laws, including all such laws that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs administered by the Office of Foreign Assets Control. You understand that the Products (including the related Documentation), hardware, software, technology, or related information that you and your employees or contractors may have access to may be subject to export control laws and regulations (the “Export Controlled Materials”). You will not, without our prior written approval from TotalMedia, allow any of your employees or contractors to have access to or use of any Export Controlled Materials, if such access or use is not authorized under the applicable law.

3. Privacy and Security

3.1. Data Privacy

We will not access or use your Content except as necessary to maintain or provide Services to you at your request, or as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 3.1. We will only use your account information in accordance with the Privacy Policy, and you consent to such usage.

3.2. Security

Without limiting Section 10 or your obligations under Section 4.1, we will implement reasonable and appropriate measures designed to secure your Content against accidental or unlawful loss, access, or disclosure.

4. Your Responsibilities

4.1. Your Content

You will ensure that your Content will not violate any of TotalMedia policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and your use of your Content.

4.2. Security and Backup of Your Content

You are responsible for properly configuring and using the Products and otherwise taking appropriate action to secure, protect, and backup your Content in a manner that will provide appropriate security and protection. This might include use of physical and logical security, firewalls, encryption, and other network security tools to protect Products and your Content from unauthorized access, and routinely archiving your Content.

5. Fees and Payment

5.1. Fees for Products and Services

Prices for Products and Services are exclusive of applicable taxes, duties, and levies and shipping or freight charges. You will pay the fees and charges set forth on your invoice, using one of the payment methods we support, on or before the 30th day following the invoice date. Notwithstanding the foregoing, we may require your payment prior to delivery by indicating as such on a sales quotation or as part of the purchase order process. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.2. Taxes

Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law.

6. Temporary Suspension

6.1. We may suspend your right to order Products and Services and your right to receive Services immediately if we determine that:

(a) your purchase or use of the Products or our performance of Services poses a security risk, could be fraudulent, or could subject us, our Affiliates, or any third party to liability;
(b) you are in breach of this Agreement; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

7. Term; Termination

7.1. Term

The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7.

7.2. Termination

(a) Termination for Convenience. Either party may terminate this Agreement for any reason by providing the other party at least 30 days' advance written notice.

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (a) for cause if we have the right to suspend under Section 6, (b) if our relationship with a third-party partner who provides hardware, software, or other technology we use to provide the Products or Services expires, terminates, or requires us to change the way we provide the hardware, software, or other technology as part of the Products or Services, or (c) in order to comply with the law or requests of governmental authorities.

7.3. Effect of Termination

(a) Generally. Upon the Termination Date:

(i) except as provided in Section 7.3(b), all your rights under this Agreement and your purchase orders immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the termination date;
(iii) you will immediately return or, if instructed by us, destroy all Confidential Information in your possession; and
(iv) Sections 2, 3, 4, 5, 7.3, 8, 9, 10, 11, 13, and 14 will continue to apply in accordance with their terms.

(b) Post-Termination. Unless we terminate this Agreement pursuant to Section 7.2(b):

(i) we will deliver any Products you ordered prior to the termination date if the delivery date is 30 days or fewer before the termination date;
(ii) you will continue to receive any Services you ordered prior to the termination date for the applicable Services term.

8. Proprietary Rights; Changes; Suggestions

8.1. Your Content

You (or your licensors) own all right, title, and interest in and to your Content. Except as provided in this Agreement, we obtain no rights under this Agreement to your Content.

8.2. Software License

You agree that your use of Software is governed by and subject to the EULA.

8.3. Rights; Restrictions

All right, title, and interest in and to the intellectual property rights in the Products and Services, including processes, tools, technology, Confidential Information, and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to TotalMedia, our Affiliates, our licensors, or suppliers, and you have no rights whatsoever in any of the foregoing. You agree that you will not attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Products; (b) reverse engineer, disassemble, or decompile the Products or apply any other process or procedure to derive the source code of any software included in the Products; (c) remove or alter any identification marks, proprietary notices or labels from the Products; or (d) resell or sublicense the Products or Services without our express written consent.

8.4. Suggestions

If you provide any suggestions to us or our Affiliates, we and our Affiliates will be entitled to use the suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the suggestions.

9. Indemnification

9.1. General

You will defend, indemnify and hold harmless us, our Affiliates, and each of our respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or relating to any third-party claim concerning breach of this Agreement or violation of applicable law by you or your Content.

9.2. Intellectual Property

(a) Subject to the limitations in this Section 9, TotalMedia will defend you and your employees, officers, and directors against any third-party claim alleging that the Products infringe or misappropriate that third party's intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Subject to the limitations in this Section 9, you will defend TotalMedia, its Affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of your Content infringes or misappropriates that third party's intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) For any claim covered by Section 9.2(a), TotalMedia will, at its election, either: (i) procure the rights to use that portion of the Products alleged to be infringing; (ii) replace the alleged infringing portion of the Products with a non-infringing alternative; (iii) modify the alleged infringing portion of the Products to make it non-infringing; or (iv) if none of the foregoing are commercially reasonable, accept the return of any infringing Product and grant you a pro-rata credit.

9.3. Process

The obligations under this Section 9 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party's expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

10. Limited Warranties

THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS”. EXCEPT TO THE EXTENT PROHIBITED BY LAW OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED, OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE PRODUCTS AND SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST LATENT OR HIDDEN DEFECTS, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) THAT THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND (III) THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

11. Limitations of Liability

WE, OUR AFFILIATES, AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF USE, PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR AND OUR AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.

12. Modifications to the Agreement

We may modify this Agreement at any time. By continuing to purchase or use Products and Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms.

13. Miscellaneous

13.1. Assignment

You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition, or sale of all or substantially all of our assets, or (b) to any Affiliate or as part of a corporate reorganization.

13.2. Entire Agreement

This Agreement is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement.

13.3. Force Majeure

We and our Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

13.4. Governing Law and Disputes

The laws of the State of California, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. Any dispute or claim relating in any way to your purchase or use of the Products or Services sold or distributed by TotalMedia will be resolved by binding arbitration administered by JAMS at Santa Clara County, California, USA in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. Notwithstanding the foregoing, we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

13.5. Independent Contractors; Non-Exclusive Rights

We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the other.

13.6. Confidentiality

You may use Confidential Information only in connection with your use of the Products and Services as permitted under this Agreement. You will not disclose Confidential Information during the term of this Agreement or at any time during the 5-year period following the end of the term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.

13.7. No Waivers

The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

13.8. Severability

If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to the effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be separated from this Agreement but the rest of the Agreement will remain in full force and effect.

14. Definitions

“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with that party.

“Hardware” means any computer hardware, equipment or device that we provide to you under this Agreement.

“Confidential Information” means all nonpublic information disclosed by us, our Affiliates, business partners, or our or their respective employees, contractors, or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to our or our Affiliates or business partners' technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content, and existence of any discussions or negotiations between you and us or our Affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.

“Content” means software (including machine images), data, text, audio, video, or images.

“Documentation” means the product specification sheets, data sheets, security practices and configurations guides, and user guides that we provide to you concerning the Products.

“Privacy Policy” means the privacy policy located at https://totalmediaio.com/privacyPolicy, as it may be updated by us from time to time.

“Products” means Hardware and Software.

“Services” means each of the services made available or provided by us under this Agreement.

“Software” means all software (including all generally available software applications, microcode, firmware, operating system software, SDKs, libraries, utilities, tools, or other computer or program code), and software feature enhancements, updates and upgrades, that we license to you under this Agreement.