Definitions. Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Exhibit A. Defined terms may be used in the singular or in the plural, as sense shall require.
Term. This Agreement will be effective as of the date you click “I Agree” below and submit the required information to LHI (the “Effective Date”) and will continue for one (1) year (the “Initial Term”). The Agreement may be extended or terminated in accordance with Section 5 of this Agreement.
Fees. The rental fee for the BUKI Boxes will be charged at a rate to be agreed between the Parties on a monthly basis per BUKI Box, plus any applicable tax. LHI has the right to change the rental fee applicable to any Renewal Term (as provided in Section 5 below) at LHI’s sole discretion upon thirty (30) days’ written notice to Customer prior to the expiration of the then current Initial Term or Renewal Term.
Revenue Share. Customer will receive an amount equal to two percent (2%) of Customer Affiliated Revenue received by LHI in accordance with Section 6.2 (the “Customer Revenue Share”).
Ownership and License.
License to BUKI Box. LHI hereby grants Customer a nonexclusive license to install or have installed the BUKI Boxes at the Customer’s location on behalf of itself, as a sponsored party, or for sponsored third parties, as appropriate, solely for use by Customer and third parties as part of the BUKI Network, according to the terms set forth in this Agreement.
License to LHI Marks. During the Term, LHI hereby grants to Customer the limited, non-exclusive, non-transferable, royalty-free right in the United States to utilize all common law and statutory trademarks, trade names, service marks, copyrights, logos, graphics, and designs associated with, or relating to, or identifying, LHI, the BUKI Network, or the BUKI End User App (collectively, the “LHI Marks”), so long as such use is associated with the BUKI Network. During the Term, Customer hereby grants to LHI the limited, non-exclusive, non-transferable, royalty-free right in the United States to utilize all common law and statutory trademarks, trade names, service marks, copyrights, logos, graphics, and designs associated with, or relating to, or identifying, Customer (collectively, the “Customer Marks”), so long as such use is associated with the BUKI Network. If LHI wishes to use any of the Customer Marks, or Customer wishes to use any of the LHI Marks, for a purpose other than the promotion of the BUKI Network, it agrees to obtain the prior written approval of the other. All use of the LHI Marks by Customer and all use of the Customer marks by LHI, shall inure to the benefit of LHI and its affiliates and to the benefit of Customer and its affiliates, respectively, which shall at all times be the sole and exclusive owner thereof.
Ownership. Title to the Customer System, including the BUKI Box, the ownership of all copyrights, mask work rights, patents, trademarks, trade secrets and all other intellectual property rights subsisting in the Customer System, any related documentation, enhancements, and adaptations, and to any modifications thereto shall at all times remain with LHI, unless specifically provided in this Agreement.
Negation of Rights Not Licensed. Any rights that are not expressly granted by this Agreement shall not be implied; the license granted pursuant to this Agreement authorizes or permits only the use of the Customer System that is expressly provided herein.
Restrictions. Customer agrees not to: (i) use the Customer System in any way forbidden by this Agreement; (ii) reverse engineer, disassemble or otherwise use the Customer System in a manner not contemplated by this Agreement or authorized in writing by LHI; (iii) reproduce any Software or Hardware; or (iv) make available or disclose to anyone else any Materials, including any non-production copies of the Materials, except to Customer’s employees, agents, and contractors who are involved in the utilization of the Materials and who are bound to preserve the confidentiality thereof. Customer will promptly notify LHI of any unauthorized use or disclosure of the Materials.
Permission from Customer. Customer hereby grants LHI permission to access, process, copy, distribute, and otherwise use the Customer Content in the context of the Platform, to track and analyze Customer’s use of the Platform, to debug and evaluate performance of aspects of the Platform, and to make the Customer Content available to other users of the Platform. To the extent that Customer has intellectual property rights in the Customer Content, Customer grants LHI a world-wide, perpetual, non-exclusive, royalty-free, sublicensable, transferable license to use and prepare derivative works from the Customer Content for the purposes outlined in this Agreement. Customer agrees that the Customer Content is not any person’s or entity’s confidential information, including Customer’s.
Rights in Customer Content. Customer represents and warrants that Customer owns, or has the right to license, the Customer Content and that submitting or transmitting Customer Content to or through the Platform will not violate the rights of any third party, including intellectual property, privacy or publicity rights. LHI is under no obligation to review or screen the Customer Content or other users’ Content. Customer shall indemnify and defend LHI against any claim that the Customer Content infringes any intellectual property of a third party or harasses, defames, libels, slanders, or defrauds a third party.
Risk of Exposure. CUSTOMER UNDERSTANDS AND AGREES THAT SHARING CONTENT DIGITALLY INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN SUBMITTING CUSTOMER CONTENT TO OR TRANSMITTING IT THROUGH THE PLATFORM, CUSTOMER ASSUMES THESE RISKS. LHI offers no representation, warranty, or guarantee that the Customer Content will not be exposed or disclosed through the Platform in an unintended manner or through errors or the actions of third parties.
Accuracy. Customer agrees that it shall be responsible for the accuracy of any Content provided by the Customer and submitted or transmitted through the Platform by LHI on the Customer’s behalf.
Acceptable Use. Customer agrees to comply with LHI’s code of conduct (“Code of Conduct”) when using the Platform and agrees that if Customer breaches the Code of Conduct, LHI has the right to terminate Customer’s rights under this Agreement. LHI’s Code of Conduct is currently posted at www.loud-hailer.com/eula. If LHI suspects that Customer has violated the requirements of this Section 4.5, LHI may suspend Customer’s access to the Platform without advanced notice, in addition to other remedies LHI may have. LHI is not obligated to take any action against Customer or any other user or other third party for violating the Code of Conduct, but LHI is free to take any such action it sees fit.
Compliance with Laws. In using the Platform, Customer will comply with all applicable laws, including laws governing the protection of personally identifiable information and other laws applicable to the protection of the Customer Content.
Term and Termination. This Agreement shall continue for the Initial Term unless it is terminated in accordance with the provisions herein. This Agreement shall automatically be extended at the end of the then current term for a subsequent one-year period (each, a “Renewal Term”; the Initial Term and all Renewal Terms, the “Term”) unless written notice is provided by one Party to the other Party of a desire to terminate the Agreement thirty (30) days prior to the end of the Initial Term or the then current Renewal Term. If LHI changes the rental fee applicable to a Renewal Term as provided in Section 2.2, Customer may terminate this Agreement at the end of the then current Initial Term or Renewal Term by providing written notice to LHI within fifteen (15) days of LHI providing notice of the price change. If either Party is in material breach of any term of this Agreement and such breach continues for 30 days (or for 15 days for breach of payment obligations or obligations under Section 13 (Confidential Information)) after receiving notice from the other Party, then the non-breaching Party may terminate this Agreement without any further obligation or liability except with respect to payment of any fees incurred prior to such termination. Upon termination of this Agreement for any reason, Customer agrees to (i) pay all monies invoiced and all monies owed but not yet invoiced, and (ii) cease all use of the Platform and coordinate with LHI to return any BUKI Boxes provided to it within a reasonable time. The following provisions will survive termination of this Agreement: Section 4.1, Section 4.2, Section 10, Section 11, Section 12, Section 13 and Section 14.6.
Costs and Payment.
Payment. Customer shall pay the BUKI Box rental fees each month, with the initial payment being due on the Effective Date and the second payment being due one month after the Effective Date. Balances which remain unpaid thirty (30) calendar days after they are due are subject to a service charge of 1.5% per month or the maximum allowed by applicable law, whichever is less. Customer will be liable for and will reimburse LHI for all taxes, duties, levies, and related charges (including any interest and penalties), however designated (excluding taxes on LHI’s net income) imposed upon or arising from the provision of Services or the license or use of the Customer System or other items provided by LHI.
Customer Revenue Share. In a given month, if Customer’s BUKI Box rental fees exceed or equal the Customer Revenue Share, the Customer Revenue Share will be deducted from the amount owed by Customer. If the Customer Revenue Share exceeds the Customer’s BUKI Box rental fees, LHI shall provide a payment to the Customer in the amount of the excess.
Third Party Advertisers. Subject to the approval rights provided in this Section 7, Customer agrees that LHI may, from time to time, enter into agreements with third parties (“Third-Party Advertisers”) and may broadcast Posts from Third-Party Advertisers via Customer’s BUKI Boxes (“Third-Party Advertiser Posts”). Customer will receive two percent (2%) of the Customer-Affiliated Revenue received from Third-Party Advertiser Posts, as provided in Section 6.2. LHI shall submit to Customer the identity of any potential Third-Party Advertisers that desire to transmit Content via Customer’s BUKI Boxes. Customer shall provide LHI a decision of approval or rejection of such Third-Party Advertisers within a commercially reasonable time. Approval of such Third-Party Advertisers shall not be unreasonably withheld.
Responsibilities of the Parties.
Installation of BUKI Boxes. Unless otherwise agreed with LHI in writing, Customer is responsible for installing Customer’s BUKI Boxes.
Creation of Posts. Unless otherwise agreed to in writing, LHI shall create eight (8) Posts for Customer each month during the term of this Agreement based on Customer Content provided to LHI, provided, however, that LHI may, in its sole discretion, create additional Posts at no extra charge. Customer may also request that LHI create additional Posts for a fee to be agreed in advance. LHI will broadcast Customer’s Posts to appropriate channels and BUKI Boxes on the BUKI Network, at LHI’s discretion. Customer shall provide all Content necessary for the generation of the Posts and shall collaborate with LHI in the generation of the Posts.
Internet Connection. If the BUKI Boxes included in the Customer System will connect to the Internet via the Customer’s network, Customer shall provide a reliable Internet connection at Customer’s location.
Hardware Upgrades. From time to time, and at LHI’s sole discretion, LHI shall upgrade or replace the BUKI Boxes installed at the Customer’s location.
Hardware Maintenance. LHI shall provide Customer with hardware maintenance services, which include labor and parts reasonably required to maintain the BUKI Boxes such that they perform to LHI’s standards. Customer will provide LHI with such technical information, data, technical support and assistance as reasonably required by LHI to fulfill its obligations hereunder.
Exclusions. LHI is not required to repair or maintain BUKI Boxes that are not operating in proper operating condition due to: (i) misuse, abuse or neglect by Customer; (ii) use of the Customer System in a manner not specified in the applicable product description; or (iii) causes external to the Customer System such as, Customer failing to position the BUKI Box in a safe location out of reach from the general public. LHI has the right, at its sole discretion, to perform any of the above maintenance services and to bill Customer at its then current rates.
Customer Support. LHI shall provide support to Customer in a commercially reasonable manner.
Infringement. In the event that any portion of the Platform is found to infringe the intellectual property rights of a third party, LHI shall in its reasonable judgement, and at its option and expense: (i) obtain for Customer the right to continue using the Customer System and/or the Platform, (ii) replace or modify the Customer System and/or the Platform so that they become noninfringing, or (iii) if, in LHI’s opinion, obtaining the remedies in (i) or (ii) is not commercially reasonable, as LHI’s sole obligation, terminate Customer’s right to use the infringing portion of the Customer System and refund the amount paid to LHI for the infringing portion of the Customer System and/or the Platform, reduced by the value received by Customer. The foregoing states LHI’s entire liability, and Customer’s sole and exclusive remedy, with respect to any claim of infringement of any patent, copyright, trade secret or other intellectual property or proprietary right which a third party may have against Customer.
Warranties and Disclaimers.
Authority to Enter into Agreement. Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
Performance of Customer System. LHI warrants solely to Customer that the Customer System IS PROVIDED AS IS, WHERE IS. LHI does not warrant that the operation of the Customer System will be uninterrupted or error-free or that the Customer System will achieve the results desired by Customer.
Warranty Disclaimers. EXCEPT AS SET FORTH IN THIS SECTION 10, LHI DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) LHI DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (b) LHI DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT THE CUSTOMER CONTENT WILL REMAIN PRIVATE OR SECURE; AND (c) LHI DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF THE PLATFORM OR OTHER THIRD PARTIES.
Third Party Sites and Content. Customer understands that the Platform may contain or send Content introduced to the Platform or provided to LHI by third parties (“Third-Party Content”), including via BUKI Boxes installed at Customer’s location. LHI may have limited or no control over such Third-Party Content. LHI WILL HAVE NO LIABILITY TO CUSTOMER FOR ANY CAUSE OF ACTION ARISING FROM SUCH THIRD-PARTY CONTENT.
Customer’s Remedies. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION THAT ARISE, EITHER DIRECTLY OR INDIRECTLY SHALL BE THE RIGHT TO TERMINATE THIS AGREEMENT UPON FIFTEEN (15) DAYS NOTICE, SUBJECT TO SECTION 5 HEREOF. IN NO EVENT SHALL LHI’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY FOR ANY INDIVIDUAL LOSS OR LOSSES ARISING OUT OF THIS AGREEMENT OR THE USE OR PERFORMANCE OF ANYTHING FURNISHED HEREUNDER EXCEED THE APPLICABLE PRICE, CHARGE OR FEE PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT WHICH GAVE RISE TO SUCH LOSS(ES) OR DAMAGE(S).
Exclusions from Liability. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, LHI AND ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR FOR ANY LOST PROFITS, REVENUES, GOODWILL OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR RESULTING FROM THE USE OR PERFORMANCE OF THE PLATFORM OR SERVICES, WHETHER IN AN ACTION FOR BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY. This Section shall survive failure of an exclusive or limited remedy.
Confidentiality. “Confidential Information” means non-public information provided by one Party (“Discloser”) to the other Party (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. LHI Confidential Information includes but is not limited to data reports provided by LHI to Customer. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section.
Assignment. LHI may assign all its rights under this Agreement to any third party if the assignee shall assume LHI’s duties under, and agree to be bound by, the terms of this Agreement. The license granted to Customer is personal and shall not be assigned or otherwise transferred, except with the written consent of LHI. Any attempted assignment or delegation in violation of this Section shall be void and ineffective for all purposes. Nothing shall preclude a Party from employing a subcontractor in carrying out its obligations under this Agreement. A Party’s use of such subcontractor shall not release the Party from its obligations under this Agreement.
Publicity. Customer agrees that LHI may use Customer’s name in materials and conversations used to recruit new businesses to its Platform.
Force Majeure. Except for payment obligations, neither Party shall be responsible for any delay or failure in performance to the extent such delay or failure is caused by fire, strike, embargo, explosion, earthquake, flood, war, water, the elements, labor dispute, government requirements, acts of God, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond a Party’s reasonable control.
Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Choice of Law and Jurisdiction. This Agreement will be governed by the internal laws of the State of New York, including without limitation applicable federal law, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction.
Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.
- “BUKI Box” means LHI’s proprietary servers that utilize Bluetooth Low Energy communication protocol to support direct communication with mobile phones and other computing devices.
- “BUKI End User App” means the computer application (whether intended for use on a smartphone, tablet, or any other computing device) used to access and interact with Content on the BUKI Network.
- “BUKI Network” means LHI’s online service based on the Platform, as operated in various geographic locations.
- “Content” means text, images, photos, audio or video files, associated metadata, and other forms of data or communication.
- “Customer-Affiliated Revenue” means Revenue received by LHI from Third-Party Advertiser Posts (as defined in Section 7), less the prorated costs expended by LHI for user acquisition related to the BUKI Network in the geographic implementation of the BUKI Network in which Customer participates, without duplicating such costs.
- “Customer Content” means Content submitted or transmitted by Customer into the Platform or to LHI.
- “Customer System” means the BUKI Boxes installed at Customer’s location.
- “End User” means persons using the BUKI End User App to access Content on the BUKI Network.
- “Materials” means all proprietary data, processes, methodologies, reports, functional and technical architectures, algorithms, procedures, software code, whether in source or object code, and software-related components and documentation, if any, provided in connection with the Customer System developed for or provided to Customer.
- “Post” means a collection of Content generated by LHI and transmitted to one or more End Users via the Platform. Posts include, without limitation, advertisements, messages, links, and articles.
- “Revenue” means LHI’s invoice price that is received by LHI, less the sum of the following: (a) amounts repaid or credited by reason of rejection or return; and (b) sales taxes, tariff duties and/or use taxes separately stated on such invoice.
- “Services” means engineering, installation, content creation, consulting or other services.
- “Platform” means LHI’s proprietary hardware and software system for proximity engagement that allows messages to be sent between and distributed among users of the system.