Master Services Agreement - US - Term | Korbyt Digital Signage

Last Updated: September 20, 2024

IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. This Master Software License Agreement (this “Agreement”) describes the terms under which RMG Enterprise Solutions, Inc. dba Korbyt (“RMG“) offers each individual or entity (hereinafter, “Customer”) access to its Software and Services.

By accessing any Software or Service, Customer agrees to comply with and to be bound by the terms of this Agreement, including the policies and guidelines linked to (by way of the provided URLs) from this Agreement. If Customer does not understand or agree with the terms below, please do not use the Service.

This Agreement is incorporated by reference into each Order executed by Customer and shall apply to any Customer Affiliate that executes an Order. RMG may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the at the domain or subdomains of www.gokorbyt.com/legal, where the prior version of the Agreement was posted, or by communicating these changes through any written contact method RMG has established with Customer.

The Parties agree to the following:

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1.DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with such entity. For purposes of this Agreement, “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either Party, including, without limitation, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by a Party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other Party or any of its employees or agents. The terms and conditions of this Agreement and any Order or SOW will be deemed the Confidential Information of both Parties.

“Content” means all content in text, graphic, animation, video, or any other form that is owned by RMG or licensed to RMG by a Third-Party Provider.

“Customer Data” means any materials, information, data, content, and other information that Customer, or its employees or agents, use with the Software.

“Documentation” means any written or electronic documentation, images, video or text specifying the functionality of the Software that is provided or made available by RMG to Customer.

“Hardware” means the physical devices purchased from RMG by Customer pursuant to an Order Form.

“License Term” means the period of time specified in an Order Form that Customer has the right to use the Software and includes any Renewal Terms (as defined in Section 12.2).

“Malicious Code” means code, files, scripts, agents or programs intended to do harm.

“Order Form” or “Order” means an ordering document executed by the Customer, which incorporates by reference the terms of the Agreement, identifies the Software licenses and Services ordered by Customer, sets forth the prices for the Software, Services, the License Term and contains other applicable information, terms and conditions. By entering into an Order hereunder, an Affiliate agrees to be bound by the terms of the Agreement as if it were an original party hereto.

“Professional Services” means implementation, site planning, training, creative services, configuration, integration, project management and other consulting services as may be described in an Order Form or SOW.

“Protected Information” means: (i) Social Security number; (ii) passport numbers or other government-issued identification numbers; (iii) health or medical information (other than dietary preferences or medical contact information); (iv) date of birth, (v) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; or (vi) other information that a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, title, company name, mailing address, email address, and phone number).

“Services” means, collectively, the Professional Services and Support.

“Software” means RMG’s provision and management of the software products described in the applicable Order or SOW that are provided for a particular License Term.

“SOW” means one or more work orders, work authorizations or statements of work, or similar document that describe the Professional Services for Customer.

“Third-Party Hardware” means all equipment, hardware and components of the Hardware provided by a Third-Party Provider.

“Third-Party Materials” means any Third-Party Software, and any Third-Party Hardware.

“Third-Party Provider” means third parties that provide Third-Party Materials under this Agreement or third parties that provide services or support in connection with the Services, including third-party provided hosting and data processing services.

“Third-Party Software” means software owned or licensed by a Third-Party Provider.

“Users” means Customer employees, Customer Third-Party consultants, contractors or agents, who access and use the Software in accordance with this Agreement.

2. USE OF SOFTWARE

2.1 Access and Use. During the Term, subject to Customer’s continued compliance with this Agreement, including payment of all applicable Fees, RMG hereby grants to Customer a non-exclusive, revocable, non-sublicensable, non-transferable and limited license to use (i) the Software and (ii) all Deliverables (defined below) created and identified in a SOW solely in connection with the Products (the “Term License”). The Software will be delivered via electronic means.

2.2 Changes and Environment. RMG regularly updates the Software and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements. Customer is solely responsible for obtaining and maintaining at its own expense all equipment needed to access the Software.

2.3 User IDs. Customer is responsible for providing and administering usernames and passwords for all Users (the “Log-In Information”). Each User must have a valid username and password for the purpose of accessing the Software. RMG will not be liable for any loss that Customer or a User may incur as a result of someone else using a User’s passwords or accounts, either with or without the applicable Users’ knowledge.

2.4 Professional Services.

2.4.1. RMG will perform the Professional Services described in an applicable SOW. Customer agrees to RMG’s Professional Services policy, which is available at https://www.gokorbyt.com/legal/professional-services-standards/

2.4.2. RMG may perform Professional Services and develop certain deliverables for customer (“Deliverables”). RMG hereby grants Customer, subject to timely payment of applicable fees and charges, and subject to the restrictions in this Agreement, a personal, nonexclusive, non-transferable license for the License Term to use the Deliverables solely in connection with its use of the Software. Unless specified in a SOW, RMG does not provide updates or reintegration work required to make Deliverables compatible with future versions or releases of the Software.

2.4.3 Customer will (i) timely cooperate and provide all assistance and access to resources reasonably required by RMG to perform the Professional Services and Support, (ii) provide a reasonable work environment if the Professional Services or Support are performed on Customer’s premises, (iii) permit RMG to control and/or operate all facility controls, systems, apparatus, equipment and machinery necessary to perform the Professional Services and provide Support; (iv) furnish RMG with all information, approvals, permits and consents from government authorities and others as may be required for performance of the Professional Services and Support; (v) notify RMG promptly of any site conditions requiring special care, and provide RMG with any available documents describing the quantity, nature, location and extent of such conditions; (vi) be solely responsible for, and assume the risk of, any problems resulting from the content, accuracy, completeness and consistency of all data, materials, information and other resources supplied by Customer; and (vii) maintain the necessary internal information technology infrastructure to enable operation of the Products and the provision of Services (viii) be solely responsible for its data, including electronically stored data (e.g., data backup, security and virus protection).

3. CUSTOMER’S USE

3.1 Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Section 13.5 (Assignment)), distribute, disclose, or otherwise commercially exploit or make available to any Third-Party the Deliverables; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Deliverables; (iii) “frame” or “mirror” the Software on any other server or device; (iv) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software, (v) remove, obscure or modify a copyright or other proprietary rights notice in the Deliverables; (vi) use the Deliverables to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates Third-Party privacy rights; (vii) use the Deliverables to create, use, send, store, or Malicious Code or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Deliverables; or (viii) permit or assist any other party (including any user) to do any of the foregoing.

3.2 Security. Customer will not: (a) breach or attempt to breach the security of the Software; (b) attempt to gain or permit unauthorized access to the Software or related systems or networks, or (c) use or distribute through the Software any software, files or other tools or devices designed to interfere with or compromise the privacy, security, or use of the Software or the operations or assets of any other customer of RMG or any Third-Party.

3.3 Breach by User. Any failure by a User to comply with this Agreement is deemed to be a breach by Customer, and RMG shall not be liable for any damages incurred by Customer or any Third-Party resulting from such breach. Customer shall immediately take all necessary steps, including providing notice to RMG, to effect the termination of a Log-In information for any User if there is any compromise in the security of that Log-In information or if unauthorized use is suspected or has occurred.

3.4 No Protected Information. Customer acknowledges and agrees that use of the Software does not require Customer to provide any Protected Information to or through the Software to RMG and RMG shall have no liability to Customer or its representatives, users or any other party related to any Protected Information stored in the Software.

4. SUPPORT

4.1 Obligations. At no additional charge, RMG agrees to provide “Basic Support” for the Software from Monday-Friday from 8 a.m. to 5 p.m. CST excluding RMG holidays. “Basic Support” means that RMG will provide a response within 12 business hours of receipt of an incident and use commercially reasonable efforts to resolve such incident promptly. Enhanced support packages may be made available for purchase. Together with Basic Support such additional support packages, if purchased, shall be collectively referenced as “Support” hereunder.

4.1.1 Korbyt Support contact information for all modules except as specified in Section 4.1.2 below is as follows:

HELP DESK	1-844-858-9585
EMAIL	support@korbyt.com

4.1.2 Support contact information for Korbyt Booking, Korbyt Visitor and Korbyt Event is as follows:

USA	+1-407-740-6001
US EMAIL	RendezvousSupport@nfstechgroup.com
UK	+44 844 335 6896
UK EMAIL	RendezvousSupport@nfstechgroup.com
ANZ	+61 800 45 35 19
ANZ EMAIL	RendezvousSupport@nfstechgroup.com

4.2 Updates and Upgrades. Support includes provision of hot fixes, error corrections, patches and updates (minor releases, e.g., version 8.1.1 to version 8.1.2), as well as minor modifications or revisions that enhance existing performance. Upgrades (major releases, e.g., version 8.1 to version 8.2) are not included and are priced separately. Updates also exclude new products, modules or functionality for which RMG generally charges a separate fee. Purchase of an annual Professional Services upgrade package is required to facilitate Upgrades.

4.3 Exceptions to Support. RMG does not provide Support with respect to: (i) Software that have been altered or modified by anyone other than RMG or its licensors; (ii) Software used other than in accordance with the Documentation; (iii) errors or malfunction caused by any data, systems or programs not supplied by RMG; or (iv) Software that is older than the most current major release or the immediately previous major release.

4.4. Other Terms. Additional terms regarding support are contained in Schedule A.

5. FEES, TAXES & PAYMENTS

5.1 General If Customer provides credit card information to RMG, Customer authorizes RMG to charge such credit card for all Software listed in the Order Form for the License Term. If the Order Form specifies that payment will be by a method other than a credit card, RMG will invoice Customer in advance. Customer shall pay the fees specified in the applicable Order Form within 30 days of the invoice date. Except as otherwise specified herein or in an Order Form, (i) Subscription fees are based on Subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant License Term.

5.2 Taxes. Customer is responsible for payment of all applicable sales, use, value added or similar taxes (excluding those on RMG’s net income) imposed by a federal, state, provincial, local or other government entity relating to the provision of the Services.

5.3 Invoicing. RMG will invoice Customer for (i) Hardware fees upon shipment of applicable Hardware; (ii) license fees for Software annually in advance of each year of the License Term; and (iii) Professional Service fees on a (A) fixed price basis will be invoiced in advance of performance, or (B) time and materials basis will be invoiced monthly.

5.4 Late Payment. If any invoiced amount is not received by RMG by the due date, then without limiting RMG’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

5.5 Disputed Fees. Customer may reasonably and in good faith dispute an invoiced amount within thirty (30) days after the invoice date, provided that Customer shall promptly pay the undisputed portion of the invoice pursuant to Section 5.1 and may only withhold payment of the disputed portion until the dispute is resolved. The Parties shall negotiate in good faith to resolve any payment dispute within forty-five (45) days. Customer agrees that any billing discrepancies or disputes not brought to the attention of RMG within thirty (30) days after the invoice date will be and are hereby waived and the invoiced amount will be deemed to be correct.

5.6 Failure to Pay. Failure to make payments of undisputed amounts pursuant to this Section 5 is a material breach of this Agreement and RMG may suspend its performance obligations in accordance with the provisions of 12.4. Amounts paid or payable for the Software are not contingent upon the delivery of any future functionality or features.

5.7 Expenses. Fees are exclusive of any shipping costs, travel, lodging or other living expenses incurred in RMG’s performance. RMG will invoice Customer for all reasonable expenses incurred in providing the Services. RMG will provide reasonable documentation evidencing such expenses. Customer will promptly reimburse RMG for any and all such expenses. Unless otherwise specified in an Order Form, packaging for commercial shipment of Hardware is included in the quoted fees. When any other packaging is specified, involving a greater expense than the cost of commercial shipment packaging, RMG will add a charge to cover such extra expense.

6. SECURITY STANDARDS AND SAFEGUARDS.

6.1 Personal Data. RMG shall maintain commercial safeguards against the unauthorized destruction, disclosure or alteration of Customer personal data that is in the possession of RMG.

6.2 Data Protection Agreement. Customer and RMG shall comply with all applicable privacy laws and regulations and shall provide help and cooperation to the other as is reasonably necessary or requested to comply with these laws and regulations. If a Service involves the processing of personal data of data subjects (as defined by applicable data protection legislation) located within the European Economic Area, Switzerland, or UK on behalf of Customer, then the Parties agree that RMG’s data protection agreement located at https://www.gokorbyt.com/legal/data-protection-addendum/ shall apply.

7. WARRANTIES AND DISCLAIMER

7.1 Mutual Warranty. Each Party represents and warrants to the other that: (i) it has the full power and authority to enter into and deliver this Agreement and perform its obligations hereunder; (ii) it has the necessary rights to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement, when executed by both Parties, is a valid and binding obligation of it and enforceable in accordance with its terms; and (iv) it will comply with all applicable laws in the course of performing its obligations and exercising its rights under this Agreement.

7.2 RMG Warranty. RMG represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Software shall perform materially in accordance with the Documentation, and (iii) the Professional Services will be performed in a professional and workmanlike manner.

7.3 Customer Warranty. Customer represents and warrants that Customer and those providing information to Customer have the right to transmit to RMG, and receive from RMG, any Content, or other data, material or records that are required to enable RMG to perform the Services and any other of its obligations under this Agreement.

7.4 Hardware Warranty. RMG’s limited warranty for the Hardware is set forth in Schedule B.

7.5 Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR STATUTORILY, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. PROPRIETARY RIGHTS

8.1 RMG’s Intellectual Property Rights. As between RMG and Customer, all rights, title, and interest in and to all intellectual property rights in the Software, Content and Deliverables (including all additions, components, derivative works, modifications and enhancements) are and will be owned exclusively by RMG notwithstanding any other provision in this Agreement or an Order Form. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software, Services, Content or Deliverables. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patents, and other proprietary right relating to the Software and Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by RMG.

8.2 Customer Data. As between Customer and RMG, Customer owns all rights, title and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that that it has and will have all rights and consents necessary to allow RMG to meet its obligations specified herein.

9. CONFIDENTIALITY.

9.1 Obligations. The receiving Party shall not disclose or use any Confidential Information of the disclosing Party for any purpose outside the scope of this Agreement, except with the disclosing Party’s prior written permission. Each Party shall protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the receiving Party is compelled by law to disclose Confidential Information of the disclosing Party, it shall provide the disclosing Party with prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure, and the receiving Party shall continue to treat this information as Confidential Information for all other purposes.

9.2 Exceptions. The receiving Party will not be obligated under this Section 9 for any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (ii) was known to the receiving Party prior to its disclosure by the disclosing Party; (iii) was independently developed by the receiving Party without use of or reference to any Confidential Information or breach of any obligation owed to the disclosing Party; or (iv) is received from a Third-Party without restriction and without breach of any obligation owed to the disclosing Party.

9.3 Prior Non-Disclosure Agreement. Any existing non-disclosure agreement entered into by the Parties is hereby superseded, terminated and replaced by the terms in this Section 9, which will govern all disclosures and exchanges of Confidential Information made by the Parties previously under that agreement.

10. INDEMNIFICATION

10.1 RMG Indemnity. RMG shall indemnify, defend and hold Customer harmless against any and all damages finally awarded against Customer by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by RMG, arising out of any claim or lawsuit by a Third-Party (a “Claim”) against Customer to the extent such Claim alleges: that the use of the Software by Customer in accordance with the terms of this Agreement, infringes any patent, copyright or federally registered trademark, or misappropriates a trade secret of a Third-Party. If Customer’s use of the Software is enjoined or RMG determines that such use may be enjoined, then RMG may, at its sole option and expense, either, (a) modify the Software to be non-infringing, (b) obtain for Customer a license to continue using the Software, or (c) if neither (a) nor (b) are practical in RMG’s sole judgment, terminate the affected Software licenses and return to Customer the unused portion of any fees paid for the affected Software. The foregoing obligations of RMG do not apply to the extent that the alleged infringement claim (i) results from any change made by Customer or any Third-Party for the Customer, (ii) could have been avoided by using an unaltered current version of the Software which was provided by RMG, (iii) is based upon any information, design, specification, instruction, software, data, or material not furnished by RMG, or any material from Customer, a Third-Party portal or other external source that is accessible to Customer within or from the Software (e.g., a Third-Party Web page accessed via a hyperlink.

10.2 Customer Indemnity. Customer shall: (a) defend RMG against any Claim against RMG to the extent the Claim results from (i) Customer Data; or (ii) Customer’s breach of Section 3.1; and (b) pay any damages awarded against RMG for the Claim or any amounts agreed by Customer and the claimant for the settlement of the Claim.

10.3 Procedures. The Party seeking indemnity under this Section 10 (the “Indemnified Party”) must: (a) notify the other Party (the “Indemnifying Party”) promptly in writing of the Claim, specifying the nature of the Claim and such relief as is sought therein; (b) tender to the Indemnifying Party sole control of the defense or settlement of the Claim at the Indemnifying Party’s expense, provided, however, the Indemnifying Party may not settle a Claim in a manner that would have an adverse impact on the business of the Indemnified Party without receiving the prior written consent of the Indemnified Party; and (c) cooperate and, at the Indemnifying Party’s expense, assist in the defense of the Claim. The Indemnified Party will have the right to participate at its own expense in any Claim or related settlement negotiations using counsel of its own choice.

11. LIMITATION OF LIABILITY.

11.1 LIMITATIONS OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 3.1 (RESTRICTIONS), 5 (PAYMENT OF FEES), 8 (PROPRIETARY RIGHTS), 9 (CONFIDENTIALITY), 10 (INDEMNIFICATION), 13.8 (OFAC), 13.9 (EXPORT) OR FROM PERSONAL INJURY OR PHYSICAL DAMAGE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, NEITHER PARTY’S LIABILITY HEREUNDER SHALL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PARTICULAR SOFTWARE LICENSE(S), HARDWARE OR SERVICE GIVING RISE TO THE CLAIM DURING THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM(S).

11.2 EXCLUSION OF DAMAGES. EXCEPT IN THE EVENT OF BREACHES OF SECTIONS 3.1, (RESTRICITONS), 8 (PROPRIETARY RIGHTS) OR 9 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT 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), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SOFTWARE, DELIVERABLES AND SERVICES provided hereunder, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES.

12. TERM AND TERMINATION

12.1 Term. Unless this Agreement is earlier terminated in accordance with Section 12.3, this Agreement commences on the Effective Data and continues until the expiration of the License Term of the last outstanding Order Form (“Term”). Except as provided in Section 12.3 below, an Order Form for Software may not be terminated early by either party prior to the expiration of the License Term.

12.2 Renewal. All licenses granted hereunder will automatically renew for the same period as the original License Term (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable License Term or Renewal Term.

12.3 Termination. Either Party may terminate this Agreement or an Order Form immediately upon written notice at any time if: (i) the other Party fails to cure any remediable material breach within 30 days of being notified in writing of the breach; (ii) the other Party ceases business operations; or (iii) the other Party becomes insolvent, generally stops paying its debts as they become due or becomes the subject of an insolvency or bankruptcy proceeding. Where a Party has rights to terminate, the non-breaching Party may at its discretion either terminate the entire Agreement or the applicable Order Form or SOW. Order Forms and SOWs that are not terminated shall continue in full force and effect under the terms of this Agreement. If this Agreement is terminated by Customer due to an uncured material breach by RMG, RMG shall promptly refund the pro-rata amount of any pre-paid license fees attributable to periods after the date of such termination.

12.4 Suspension. RMG may immediately suspend its performance hereunder if RMG becomes aware of, or reasonably suspects, any breach of this Agreement by Customer or its Users. RMG will act in good faith and use reasonable efforts to notify Customer via phone or email before initiating suspending or restricting any Services. Customer is still responsible for full payment of the Order Form(s) even if access to the Software is suspended or terminated for any breach of this Agreement.

13. MISCELLANEOUS

13.1 Order of Precedence. The terms and conditions of this Agreement control to the extent any terms and conditions of this Agreement conflict with the terms and conditions of an Order Form or SOW, except where the Order Form or SOW specifically states the intent to supersede a specific portion of this Agreement. All pre-printed or standard terms of any Customer purchase order or other business processing document are hereby rejected and will have no force or effect.

13.2 Force Majeure. A Party will be excused from performance under this Agreement for any period of time that the Party is prevented from performing its obligations hereunder as a result of an act of God, criminal acts, distributed denial of service attacks, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, war, utility or communication failures, or other cause beyond the Party’s reasonable control. Both Parties shall use reasonable efforts to mitigate the effect of a force majeure event.

13.3 Waiver. The delay or failure of a Party at any time to enforce a right or remedy available to it under this Agreement with respect to any breach or failure will not be construed as a waiver with respect to that breach or failure or any other breach or failure.

13.4 Severability. If any provision of this Agreement is held invalid or unenforceable by a court, this Agreement will be construed as if not containing the invalid or unenforceable provision, and the rights and obligations of Customer and RMG shall be construed and enforced accordingly.

13.5 Assignment. Except for assignment to a Party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such Party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other Party, neither Party may assign any right or obligation set forth under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, any purported assignment or transfer in violation of this Section 13.5 is void.

13.6 Relationship of the Parties. Each Party is an independent contractor in the performance of this Agreement and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection with this Agreement.

13.7 Governing Law. This Agreement is governed by the laws of the State of Texas without giving effect to its conflict of law provisions. For purposes of establishing jurisdiction in Texas under this Agreement, each Party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of the court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any suit, action or proceeding is brought in an inconvenient forum. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. Each Party waives its right to a trial by jury for all matters or disputes arising from this Agreement.

13.8 OFAC. Customer represents and warrants that it is not and will not share the Software or the benefit of the Services to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or U.S. State Department or U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and RMG may immediately terminate this Agreement.

13.9 Export. The Software, Services and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall not export, re- export, divert, or transfer the Software, Services, Documentation or any component thereof to any prohibited destination or to any party who has been prohibited from participating in US export transactions by any federal agency of the US government. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Software, Services and Documentation. Customer shall indemnify RMG, including its officers, directors and agents from all losses and liabilities (including reasonable attorney’s fees and court costs) arising from any breach of Customer’s representations, warranties or obligations under this Section.

13.10 Entire Agreement; Counterparts. This Agreement contains the entire agreement of the Parties with respect to its subject matter and supersedes all prior agreements on the same subject matter and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto. This Agreement may not be modified except by a writing signed by RMG and Customer. This Agreement, Order and/or any SOW may be signed in any number of counterparts all of which together will constitute one and the same document. A signed copy of this Agreement, Order and/or any SOW transmitted via facsimile, email or other electronic means will constitute an originally signed Agreement, Order and/or SOW, as applicable, and, when together with all other required signed copies of this same Agreement or SOW, as applicable, will constitute one and the same instrument.

13.11 Use of Agents. RMG may designate an agent or subcontractor to perform certain tasks and functions under this Agreement. However, RMG will remain responsible for performance of its duties under this Agreement.

13.12 Publicity. Customer agrees that RMG may identify Customer as a licensee of its Software and use its logo in sales presentations, marketing materials and press releases.

13.13 Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be: (i) delivered in person; (ii) delivered by electronic mail to the address listed on the applicable Order Form; (iii) sent by first class registered mail, or air mail, as appropriate; or (iv) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person specified in the Order Form. Notices will be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is effected. Either Party may change its contact person or address for notices by means of notice to the other Party given in accordance with this Section.

13.14 Survival. Sections 1, 2, 3, 5, and 8-13 will survive termination of this Agreement.

Attachments:

Schedule A – Support Terms and Conditions

Schedule B – Hardware Terms and Conditions

SCHEDULE A

SUPPORT TERMS AND CONDITONS

RMG offers Support via a Support Plan. The Support Plan applies to all Software included in a single system or installation if purchased. Customer must purchase and continuously keep in effect Software support or a reinstatement fee may be charged by RMG if Customer ceases to purchase Support and later decides to purchase Support after a gap in time.

SUPPORT SERVICES
- Included Services. Provided that Customer complies with the terms of this Agreement, including but not limited to Section 1(B) below, RMG will provide the applicable Support availability, response times, and services as described herein for Customer’s then-current Support Plan.
- Customer’s Responsibilities. Customer shall:
  - pay all amounts due under this Agreement;
  - pay any expenses incurred by RMG in acquiring access to the Hardware and Software (collectively, “Products”) supported (including without limitation expenses due to any Customer procedure or security protocol);
  - pay for any on-site Support at RMG’s then-current rates and pay for expenses incurred by RMG to perform on-site Support (including expenses for travel, labor and lodging subject to the requirements in this Agreement);
  - pay RMG’s then-current rates for any work not covered by Support;
  - grant RMG appropriate access to the Products being supported;
  - comply with RMG’s recommended implementations regarding any Upgrades and Updates;
  - at its expense, uninstall, pack and ship any Hardware needing Support to the address provided in the Return Material Authorization;
  - install any replacement Hardware when received; and
  - indicate the following in any request for Support: name, company, telephone number, description of the problem, whether the applicable Software is inoperative, and when Customer will be available to receive a return call from RMG.
- Excluded Services. RMG is not obligated to provide any services beyond those offered above. RMG only supports the then-current, generally available Software major release version, the immediately previous major release version, and all Update versions (including minor releases versions, path or hot fix versions). Customer acknowledges and agrees that there is no warranty of backward compatibility.
FEES
- Fees. RMG’s current rates for the Support may be updated by RMG at any time. However, any rate change shall not affect an unexpired Order for Support until that Support Term renews.
- Non-refundable Support Fees. Customer acknowledges and agrees that Support Fees are non-refundable, notwithstanding any expiration or termination of an Order, SOW, or this Agreement.
- Additional Charges. Any additional charges (including without limitation those incurred for after-hours Support, on-site Support, training and installation Services) will be invoiced by RMG after they are incurred. Customer acknowledges and agrees that such charges are non-refundable. Work that incurs such charges will not be performed until approved in advance by Customer.
TERM AND RENEWAL
- Initial Support Term; Renewal. The initial term of the Support Plan shall commence upon date of Product shipment, and shall continue for one (1) year, or such other period of time as agreed in writing in advance by the Parties (the “Initial Support Term”). After the Initial Support Term, the Support Plan will automatically renew for additional one-year periods (each, “Renewal Support Term”), unless one Party provides the other Party with written notice prior to the expiration of the Initial Support Term or the then-current Renewal Support Term, as applicable, of its intent not to renew the Support Plan. The Initial Support Term and any Renewal Support Terms are collectively referred to as the “Support Term”.
- Lapse in Support. If Support lapses, Customer will not receive Support for, nor Upgrades or Updates to, the Products, and renewed Support will be provided at RMG’s then-current rates.

SCHEDULE B

HARDWARE TERMS AND CONDITIONS

DELIVERY AND TITLE

A Shipping and Delivery.

(i) Subject to subpart (ii) of this Section 1(A), RMG will ship the Hardware FCA Shipping Point (INCOTERMS 2010); provided, that Customer will reimburse RMG the shipping and insurance costs. RMG will use Customer’s preferred carrier if Customer provides RMG with necessary information and instructions. Otherwise, RMG is responsible for delivering the Hardware to its preferred common carrier with RMG’s preferred routing instructions, obtaining all appropriate shipping documents, and assuring that the Hardware has been insured for its replacement cost.

(ii) Delivery of the Hardware will be subject to availability of the Hardware. However, any dates quoted for delivery of the Hardware are approximate only, and RMG will not be liable for any delay in delivery of the Hardware, regardless of cause.

B Title to Hardware. Title and ownership of the Hardware will pass to Customer upon Customer’s payment for the Hardware.

C Risk of Loss. Risk of loss to the Hardware will pass to Customer upon delivery of the Hardware to the carrier. Customer assumes risk of loss or damages to the Hardware while the Hardware is in transit to Customer. Within ten (10) business days of receipt of the Hardware (or three calendar days for Third-Party displays/TVs), Customer will inspect the Hardware and inform RMG of any damages thereto. Should Customer not notify RMG of any damage incurred during shipment of the Hardware within the applicable period, RMG will be relieved of all responsibility and liability with respect to the damaged Hardware, and Customer will be responsible for any damage claim, repair or replacement of such damaged Hardware. These terms also apply to any Hardware provided to Customer in connection with any warranty for Hardware. Notwithstanding anything in the Agreement and this Attachment to the contrary, risk of loss and title thereto is not subject to Customer’s acceptance of the Hardware.

WARRANTIES

A Limited Warranty. RMG warrants that the supplied RMG manufactured Hardware will be materially free from defects and workmanship for a period of one (1) year, commencing on the date of shipment, subject to the following limitations:

The limited warranty extends only to Customer and is not assignable or transferable to any subsequent purchaser or end user;
Unless Customer purchases an Extended Warranty Plan with the Advance Shipper option as described below, Customer will bear the cost of shipping the Hardware to the Customer technical support department of RMG. Customer will bear the cost of shipping the Hardware back to Customer after the completion of service, or to ship replacement Hardware if RMG elects replacement as Customer’s remedy under this limited warranty;
Customer complies with any additional warranty procedures that may be provided from RMG from time to time;
A repair on warranted Hardware is good only for the balance of the warranty, or for ninety (90) days from the date of the repair, whichever is longer;
at Customer’s expense, uninstall, pack and ship any Hardware needing Support to the address provided in the Return Material Authorization; and
install any replacement Hardware when received;

B Warranty Exclusions. The limited warranty provided for in Section 2(A) and the warranty remedies provided for in Section 2(C) herein do not cover:

Third-Party Hardware;
defects or damages resulting from use of the supplied Hardware in other than its normal and customary manner, or in an environment or in a manner or for a purpose for which the Hardware was not designed;
defects or damages from incorrect or abnormal use, abnormal conditions (including without limitation, results of force majeure event), power surges or other irregularities, failure to perform recommended maintenance or improper maintenance, improper handling, or storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair (successfully or not), or had parts replaced by any party other than RMG or an RMG authorized repair facility, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of RMG, including damage caused by shipping, spills of food or liquid;
breakage or damage unless caused directly by defects in material or workmanship;
claims in which the technical support department at RMG was not notified by Customer of the alleged defect or malfunction of the supplied Hardware during the applicable limited warranty period;
Hardware which has had the serial number removed or made illegible;
Hardware that was not purchased by Customer from RMG or its authorized resellers;
claims caused by Third-Party Materials;
damage due to normal wear and tear;
consumables such as fuses and batteries; or
any other cause not wholly and directly attributable to a defect in the Hardware.

C Warranty Remedies. As Customer’s sole and exclusive remedy for any warranty claim with respect to RMG manufactured Hardware, during the warranty period, RMG will, at its sole option, either repair, replace or refund the purchase price of the Hardware of any supplied Hardware that is covered under this limited warranty. RMG will not be required to repair or replace more than the components of the Hardware actually found to be in breach of the limited Hardware warranty provided in this Schedule, and repaired or replaced Hardware will be warranted under this Schedule only for the remaining portion of the original warranty period. RMG may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units. In addition, RMG will not back-up any data or Content that Customer has added to the Hardware. Where Customer returns any Hardware, and after evaluation, RMG finds no non-conformity to the warranty, RMG may return the Hardware to Customer, and Customer shall pay RMG its standard “no trouble found” (“NTF”) or equivalent fee.

D Third-Party Hardware. Third-Party Hardware warranty and support is only available from the manufacturer, except under separate agreement. RMG does not provide any services for Third-Party Hardware that is not manufactured by RMG. These products fall under the normal pass-through warranties provided by the manufacturer. RMG will pass-through to Customer any applicable Third-Party Hardware warranties from Third-Party Providers that RMG is legally able to transfer.

HARDWARE EXTENDED WARRANTY PLANS

Two Extended Warranty Plans which continue the repair or replacement benefit for non-conforming Hardware are available for purchase by Customer. Either type of plan must be purchased only at the time, and as part, of the original Hardware purchase for the full term of the applicable plan: (a) Hardware Extended Warranty Plan with the Advance Shipper feature: Priced at a percentage of the then current list price of all Hardware covered, as specified in the current price list, per year, Customer may select the Hardware Extended Warranty Plan with the Advance Shipper feature for the first three (3) years beginning with the original purchase of RMG Hardware, providing a total of three years’ warranty coverage. If Customer has purchased this feature, and it notifies RMG that Hardware provided under this Agreement does not conform to the applicable warranty, and RMG has issued the appropriate return materials authorization: (i) RMG will ship, at Customer’s expense, replacement Hardware to Customer; Customer may select and pay to receive the replacement Hardware the next business day after receipt of Customer’s notice, or pay for and use standard shipping instead; and (ii) Customer will provide paid transport to return the defective Hardware to RMG’s facilities once uninstalled by Customer. RMG Networks Smart Screens are not eligible for Advance Shipper Support and (b) Hardware Extended Warranty Plan (without Advance Shipping feature): In the alternative, Customer may select a Hardware Extended Warranty Plan as priced at a lower percentage of the current list price of all Hardware covered, as specified in the current price list per year, that does not include the Advance Shipper feature. If selected, this Plan begins upon expiration of and continues the one (1) year limited Hardware warranty described under Section 2 of this Schedule for two additional years, providing a total of three years’ warranty coverage. With either Extended Warranty plan:

Third-Party Hardware is excluded from the Extended Warranty plans;
The terms of Section 2 of this Schedule, Warranties shall apply to any Extended Warranty plan, except as expressly excluded or changed by this provision;
For both plans, Customer will be responsible for removal and reinstallation of the Hardware and any associated costs and for shipping costs each way for the type of delivery desired (overnight or standard shipping);
RMG may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units as replacement units;
RMG may substitute a functionally equivalent model if the Customer’s model of Hardware is no longer commercially available; and
RMG retains the right to impose an NTF or equivalent fee for returned Hardware where RMG finds no non-conformity to the warranty.

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Master Services Agreement – US – Term