Tightrope Media Systems, Inc.
CABLECAST END-USER SOFTWARE LICENSE AGREEMENT
April 4, 2023
This Cablecast End-User Software License Agreement (the “License”) states the terms and conditions under which Tightrope Media Systems, Inc. (“Tightrope,” “we,” “our”) licenses its Cablecast™ brand server software and other Cablecast™ brand software included on a paid purchase order or invoice (together with any Updates, the “Software”) for use with Cablecast™ brand hardware appliances (collectively, the “Products”) by the end user that owns or leases, and controls, the Products (the “Licensee,” “you,” “your”). As used herein, “Software” does not include any Cablecast™ brand software that may be provided to you under separate license.
PLEASE READ THIS LICENSE CAREFULLY IN ITS ENTIRETY. THIS LICENSE IS A BINDING AGREEMENT BETWEEN YOU AND TIGHTROPE. TIGHTROPE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY ACQUIRING AND USING THE SOFTWARE OR BY CLICKING “ACCEPT” WHEN SHOWN, YOU ACCEPT THIS LICENSE AND AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE. THE PERSON ACQUIRING THE PRODUCTS OR SOFTWARE OR CLICKING “ACCEPT” ALSO REPRESENTS AND WARRANTS THAT (I) THEY ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF THE LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THEY HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LICENSEE AND BIND THE LICENSEE TO ITS TERMS.
Tightrope distributes the Software directly and through its authorized resellers. Subject to the terms of this License, Tightrope retains all intellectual property rights worldwide in and to the Software. Further, all persons that you authorize to use the Software shall be bound by this License.
We license one (1) copy of the Software for use with each Product. Your use of the Software is subject to your acceptance of this License. Subject to such acceptance, for the Term of this License, Tightrope hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, right and license to copy, install, and use, solely through your Authorized Users, one copy of the Software on a Product owned or leased, and controlled by you, for your own internal business purposes. As used in this License, “Authorized User” means any of your employees or contractors who you permit to access and use the Software pursuant to this License.
2. THIRD PARTY SOFTWARE.
To the extent the Software includes proprietary software code or other intellectual property licensed by us from a third party, we hereby grant you a license to such software and materials that is co-extensive with the licenses granted to our Software under Section 1. If the Software includes any free or open source software code, such code is provided to you subject to the express terms of the applicable free or open source software license. You are bound by the same free or open source software license terms even though you are not executing a separate free or open source license agreement. Any breach by you or any of your Authorized Users of a license to third-party software is also a breach of this License. For the full term of this License, we will maintain a current record of all free and open source software code incorporated into the current release of the Software and the name of the license governing such code. We will provide Licensee with access to these records upon request.
3. RESTRICTIONS ON USE.
The Software is licensed, not sold. This License only grants you the usage rights stated in Sections 1 and 2.
All copies of the Software made by you (a) will be the exclusive property of Tightrope; (b) will be subject to the terms and conditions of this License; and (c) must include all trademark, copyright, patent, and other intellectual property rights notices contained in the original copy of the Software.
You may not, and shall require your Authorized Users not to: (a) modify, translate, or create any derivative works of the Software, or combine the Software with any other software programs or technology; (b) decompile or reverse engineer any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (c) sell, assign, sublicense, rent, lease, loan, provide, distribute, or otherwise transfer all or any portion of the Software; (d) make, have made, reproduce, or copy the Software other than for archival or backup purposes; (e) remove or alter any trademark, logo, copyright or other proprietary notices appearing in the Software computer files or display screens; (f) cause or permit any other party to do any of the foregoing; (g) provide any individual or entity with access to or use of the Software; (h) use the Software in violation of any law, regulation, or rule; (i) use the Software for any purpose that is to Tightrope’s commercial disadvantage; or (j) engage in any other conduct that, directly or indirectly, violates the terms of this License.
Licensee is responsible and liable for all uses of the Software resulting from access provided by Licensee or its Authorized Users, directly or indirectly, including for acts and omissions by its Authorized Users.
4. AUDIT RIGHTS.
A. Tightrope may audit your use of the Software to ensure that you are in compliance with this License. Any such audit shall be conducted (i) on not less than three (3) days' prior notice to you, and (ii) no more than twice annually except for good cause shown. Tightrope also may audit your computer systems within three (3) months after the end of the Term to ensure you have ceased use of the Software and removed all copies of the Software from such systems as required hereunder. You shall cooperate fully with Tightrope's personnel conducting such audits and provide all access requested by Tightrope to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. Tightrope may conduct audits only during your normal business hours and in a manner that does not unreasonably interfere with your business operations.
B. If we determine from any audit pursuant to this section that your use of the Software exceeds or exceeded the use permitted by this License, then you shall pay Tightrope the retroactive license fees for such excess use within 15 days following the date of Tightrope's written payment request to you, and also pay for valid licenses as necessary to bring your use in compliance with this License. If the use exceeds or exceeded the use permitted by this License by more than 5%, you shall also pay to Tightrope its reasonable costs incurred in conducting the audit.
C. Tightrope's remedies under this section are cumulative and are in addition to, and not in lieu of, all other remedies Tightrope may have at law or in equity, whether under this License or otherwise.
5. PRIVACY AND DATA USE.
As between Tightrope and Licensee, Tightrope owns all registered and unregistered rights related to any patent, copyright, moral rights, trademarks, trade secrets, and other intellectual property rights (“Intellectual Property Rights”) in and to the Software, Documentation (as defined below) and Cablecast brand Products that are recognized by any legal jurisdiction worldwide, now or hereafter. The Software is licensed and not sold to you. Tightrope and its licensors and service providers reserve all ownership and Intellectual Property Rights not expressly granted to you under this License.
If Licensee or an Authorized User submits comments, ideas, or feedback to Tightrope regarding the Software or anything related to its functionality or use (“Feedback”), Tightrope may use them without any restriction or compensation to Customer. Tightrope does not waive any rights to use similar or related ideas or feedback previously known to Tightrope, developed by Tightrope, or obtained from sources other than Licensee or Authorized Users. Licensee hereby assigns to Tightrope on Licensee's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
7. TERM AND TERMINATION.
This License is effective and legally binding on the date you accept it and will continue in force until terminated (the “Term”). You may terminate this License at any time by permanently deleting the Software from the Product. This License will terminate immediately without notice from us if you fail to comply with any provision of this License. Either party may terminate this Agreement immediately upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice of breach by the non-breaching party.
8. SOFTWARE WARRANTY.
A. LIMITED WARRANTY. We warrant that the Software will perform substantially as described in the current version of our user manual and other documentation (the “Documentation”) posted on the Cablecast website located at https:///www.cablecast.tv/legal (the “Cablecast Website”).
B. TERM OF WARRANTY. The limited warranty covers the Software for one year after the initial Licensee acquires the Product from us. If you receive supplements, updates, or replacement Software during that year, they will be covered for the remainder of the warranty term or 30 days, whichever is longer. If the first Licensee transfers the software, the remainder of the warranty period will apply to the recipient.
C. EXCLUSIONS. The Software warranty does not cover problems caused by your acts or failures to act, the acts of others, or any events beyond our reasonable control.
D. REMEDY FOR BREACH OF WARRANTY. If Tightrope breaches its limited Software warranty provided in Section 8(a) of this License, Tightrope will correct or replace the Software at no charge during the warranty term. We will also repair or replace supplements and updates to the Software at no charge. These are your only remedies for breach of Tightrope’s limited Software warranty.
E. NO WARRANTY FOR EMERGENCY USE. The Software is not designed or intended for emergency notification or use in life-threatening situations requiring fail-safe performance, including without limitation, situations involving severe weather or natural disasters, terroristic threats or risks, potential mass shootings, riots or other public unrest, or any other situation in which the failure of the Software could lead to death, personal injury, or severe physical or property damage (collectively, “Emergency Situations”). TIGHTROPE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR USE IN EMERGENCY SITUATIONS.
F. WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED EXPRESS WARRANTY STATED IN THIS SECTION, THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR AGAINST INFRINGEMENT.
A. Tightrope will indemnify, defend, and hold you and your officers, managers, directors, agents, independent contractors, employees, permitted successors, and permitted assigns harmless from and against any actual or threatened suit, demand or claims, damages, costs, liabilities and expenses (collectively, an “Action”) arising out of or relating to an actual or alleged infringement by the Software of a patent, copyright, trademark or other proprietary rights of a third party under U.S. law.
B. Tightrope’s indemnification obligation under Section 9(A) does not apply to the extent that an Action arises from any allegation of or relating to:
(i) any documents, data, content or specifications, open source software, hardware or other products, facilities, equipment or devices that are not supplied by Tightrope;
(ii) operation or use of the Software in or with, any computer equipment, software, or other technology not provided by Tightrope;
(iii) modification of the Software other than: (x) by Tightrope in connection with this License; or (y) with Tightrope’s express written authorization and in strict accordance with Tightrope’s written directions and specifications;
(iv) failure to timely implement any maintenance release, modification, update or replacement of the Software made available to you by Tightrope;
(v) use of the Software after Tightrope’s notice to you of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights;
(vi) negligence, abuse, misapplication, or misuse of the Software by you;
(vii) use of the Software by you or on your behalf that is outside the purpose, scope, or manner of use authorized by this License or in any manner contrary to Tightrope’s instructions; or
(viii) events or circumstances outside of Tightrope’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions).
10. LIMITATION OF LIABILITY.
OTHER THAN LIABILITY RELATED TO TIGHTROPE’S INDEMNIFICATION OBLIGATIONS UNDER THE PRECEDING SECTION, IN NO EVENT WILL TIGHTROPE OR YOU BE LIABLE UNDER THIS LICENSE FOR ANY: (a) INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SOFTWARE; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TIGHTROPE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TIGHTROPE WILL HAVE NO MONETARY LIABILITY TO YOU FOR ANY PURPOSE RELATED TO THE USE OR LICENSING OF THE SOFTWARE UNLESS WE HAVE EXPRESSLY AGREED TO ASSUME SUCH LIABILITY.
11. EXPORT RESTRICTIONS.
The Software may be subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. Contact us for additional information on exporting the Software.
12. MAINTENANCE AND SUPPORT SERVICES.
Tightrope will provide Licensee with basic maintenance and support services in accordance with its current maintenance and support policies and practices. Maintenance and support services will include provision of such updates, bug fixes, patches, and error corrections (“Updates”) as Tightrope makes generally available to all licensees of the Software then entitled to maintenance and support services. Tightrope may develop and provide Updates in its sole discretion, and Licensee agrees that Tightrope has no obligation to develop any Updates at all or for particular issues. Use of all Updates will be subject to Licensee’s compliance with the terms of this License. Maintenance and support services do not include any new version or new release of the Software that Tightrope may issue as a separate or new product, and Tightrope may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
A party may not assign, subcontract, delegate, or otherwise transfer any of its rights or obligations under this License without the other party’s prior written consent, except that both parties may assign this License to a legal entity which acquires substantially all of its assets or management control of the business as part of a merger, acquisition, consolidation, exchange of interests, or similar transaction. Any required consents to assignment shall not be unreasonably withheld or delayed. Any prospective assignee must be able to fulfill all of the assignor’s obligations under this Agreement.
14. GENERAL TERMS.
This License constitutes the entire agreement between you and Tightrope and supersedes any and all prior proposals, agreements, or communications with respect to its subject matter. This License may only be changed with the express authorization of Tightrope. You may not assign or otherwise transfer this License to anyone. This License is governed by the laws of the State of Minnesota, United States, and controlling U.S. federal law. No conflict of laws provisions of any jurisdiction shall apply to the interpretation or enforcement of this License. Any legal suit, action, or proceeding arising out of or related to this License will be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in the County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Section 3 would cause Tightrope irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Tightrope will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies described in the preceding sentence are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. Tightrope and the Licensee hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. If this License is found invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain in full force and effect, and the invalid provision will be enforced to the maximum extent permitted by law as necessary to effect the intent of the License. All notices required under this License will be in writing and deemed to have been duly made when personally served, delivered by a nationally-recognized next-day courier service, or five (5) days after mailing via U.S. Certified First Class Mail or its international equivalent. Notices shall be sent to Tightrope at the address shown on the contact page of the Cablecast Website. We will send any required notices to you at the address to which you have requested such notices be sent in a written notice sent to us.
Tightrope Media Systems, Inc.
400 South 4th Street Suite 410
Minneapolis, MN 55415-1419
Copyright © 2015-2023 Tightrope Media Systems, Inc. All rights reserved.