StratosMedia – Terms of Service
By using the StratosMedia service you represent that you are lawfully able to enter into this Agreement (e.g., you are of legal age and not barred from entering such agreements) with StratosMedia and if you are entering into this Agreement for an entity, you represent that you have legal authority to bind that entity.
1.0 Ability to enter an Agreement
2.0 Term of Service Offering
This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with Clause 12.0 or until either party gives the other 30 days written notice to terminate, expiring on or after the first anniversary of the Effective Date of this Agreement (the “Term”).
3.0 Service Offering
In accordance with this Agreement, StratosMedia will establish an account and login procedure for you on the StratosMedia website.
The Service Offering entitles you to use of the StratosMedia software and user interface for creating and storing your content and the ability to manage and program your content for display on multiple display devices.
The Service Offering includes any Training and Service Support described in this Agreement. You are responsible for providing training and service support (if any) to Users beyond that stated in this Agreement.
4.0 Changes to Service Offering
We may improve, change or modify any of the Service Offering or change features or functionality of the Service Offering from time to time using commercially reasonable efforts to maintain or improve the Service Offering when compared to the Service Offering provided at the commencement of this Agreement. We will notify you of any material change to the Service Offering. You have the right to terminate this Agreement at any time if we make any of the changes contemplated hereby which you can demonstrate have or could adversely affect your position financially in relation to this Agreement.
5.0 Uptime Guarantee
StratosMedia guarantees that the StratosMedia Software will be functioning and available for connection and your use for no less than 99.9% of the time in any calendar month. You may request a pro rata credit for the downtime that exceeds this guarantee in any calendar month.
6.0 Use of the Service
7.0 Acceptable Use
You agree to use the Service Offering for lawful purposes only. It is prohibited to use the Service offering in a manner which contravenes regulations or laws in the State or Country where the Service Offering is used. This includes, but is not limited to: storage, transmission, distribution, or display of any information, data or material in violation of applicable laws or information protected by copyright, trademark, trade secret, or other intellectual property rights.
8.0 Security and Data Privacy
Without limiting Section 15.0 or your obligations under Section 9.1 (Your Content), we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
9.0 Your Responsibilities
9.1 Your Content
You are solely responsible for the development, operation, storage, and use of Your Content. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup on your resources of the assets that you upload into StratosMedia. For clarity all assets stored in StratosMedia, for security and technical reasons are encrypted and encoded and not compatible for use by any other program.
You are solely responsible for allowing Users to access your Account, your Content and the use of the Service Offering. You will ensure that all Users comply with your obligations under this Agreement.
9.3 Access to Service Technical Requirements
You are solely responsible for ensuring that all users who wish to utilise the StratosMedia service have access to hardware with the current stable release version of the Google Chrome Browser. You must also ensure that the most current stable release version of the Google Chrome Browser may be able to be deployed to your Media Playback hardware for the duration of your StratosMedia subscription.
10.0 Fees and Payment
10.1 Service Fees
You will pay us the applicable fees and charges for use of the Service Offering as described in this Agreement. Subject to Clause 10.2, all amounts payable under this Agreement will be made on the Due Date.
10.2 Disputed Invoices
Unless you notify StratosMedia in writing within 14 days following receipt of an invoice that you dispute an invoice, you shall be deemed to have accepted the invoice. Where only part of an invoice is disputed, the undisputed amount shall be paid on the Due Date.
10.3 Late Payments
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.
All fees and charges stated in this Agreement are exclusive of any form of tax and duties including taxes applicable through the business transaction, including but not limited to Goods and Services Tax, Value Added Tax and Sales Tax (TAX).
Any TAX amounts payable by You shall be increased or decreased by such amount as required by law. If you are legally entitled to an exemption from TAX, you are responsible for providing us with legally-sufficient TAX exemption documentation.
11.0 Temporary Suspension
11.1 Suspension of Service Offering
We may immediately suspend your or any User’s right to access or use any portion or all of the Service Offering if we reasonably determine:
(a) your use of the Service Offerings (i) poses a security risk to the Service Offering, ( ii ) adversely impacts the systems providing the Service Offering (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(b) you are in material breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; 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, liquidation, dissolution or similar proceeding or have in any manner breached the provisions of Clause 6.0 hereof.
11.2 Effect of Suspension
If we suspend your right to access or use any portion or all of the Service Offering in accordance with Clause 11.1:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you remain responsible for any applicable fees and charges for any Service Offerings to which you continue to have access; and
(c) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
12. Effect of Termination
12.1 End of Term
These Terms of Service (except for the licence provisions stated in Clause 13.2) continue to apply to the parties (in addition to any assignee) despite any permitted assignment of any rights under the Agreement or the completion or termination of the Agreement.
(a) you remain responsible for all fees and charges you have incurred until the date of termination;
(b) Your Content will be erased 30 days after termination unless alternative arrangements are agreed upon for your content to be stored for retrieval at a later date and all appropriate charges are paid in full.
12.2 Termination for Cause by either Party
Either party may terminate this Agreement at any time for cause upon 30 days advance written notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30-day notice period.
12.3 Termination by StratosMedia
We may terminate this Agreement immediately upon notice to you (A) if any act or omission by you or any User results in a suspension pursuant to Clause 11.1, or (B) in order to comply with the law or requests of governmental entities.
Effect of Termination
Upon any termination of this Agreement:
(a) These Terms of Service (except for the licence provisions stated in Clause 13.2) continue to apply to the parties (in addition to any assignee) despite any permitted assignment of any rights under the Agreement or the completion or termination of the Agreement.
(b) You remain responsible for all fees and charges you have incurred until the date of termination;
(c) Your Content will be erased 30 days after termination unless alternative arrangements are agreed upon for your content to be stored for retrieval at a later date and all appropriate charges are paid in full.
13.0 Proprietary Rights
13.1 Your Content
You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and you have all rights in Your Content as are necessary to grant the rights contemplated by this Agreement.
You consent to our use of Your Content solely to provide the Service Offering to you. We obtain no rights from you or your licensors to Your Content, including any related intellectual property rights. We may disclose Your Content to comply with any request of a governmental or regulatory body.
13.2 Service Offerings License
StratosMedia or our affiliates or licensors own and reserve all right, title, and interest in and to the Service Offering and any improvements or suggestions that You may provide to StratosMedia. We grant you a limited, revocable, non-exclusive, non-sub-licensable, non-transferrable license for the Term to access and use the Service Offering solely in accordance with these Terms of Service. You obtain no rights from StratosMedia or our affiliates or licensors to the Service Offerings, including any related intellectual property rights other than those stated in this Agreement.
13.3 License Restrictions
You represent and warrant that You will not attempt to:
(a) modify, alter, tamper with, repair, or otherwise create derivative works of any Service Offering,
(b) apply any process or procedure to derive the source code of any software included in the Service Offering,
(c) access or use the Service Offering in a way intended to avoid incurring fees or exceeding usage limits or quotas, or
(d) assign this Agreement, or delegate or sublicense any of your rights under this Agreement without our consent.
You will indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses arising out of or relating to any third-party claim concerning Your Content, including any claim involving alleged infringement of third-party rights by Your Content or by the use of Your Content.
We will promptly notify you of any claim against StratosMedia relating to your use of the Service Offering. You will also reimburse us for reasonable legal fees calculated on an indemnity basis as well as our employees’ and contractors’ time and materials spent responding to any compulsory legal order arising from a claim against StratosMedia in relation to your use of the Service offering.
15.0 Warranty Disclaimers
You acknowledge that the Service Offering can be subject to interruption for many reasons and agree that your use of the Service Offering shall be at your own risk. StratosMedia make no representations or warranties of any kind, whether express, implied, statutory or otherwise that the Service Offering will be uninterrupted, error-free or free harmful components or that Your Content will be secure or not otherwise lost or damaged and includes any implied warranty of merchantability for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions.
16.0 Limitations of Liability
StratosMedia will not be liable to you for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use, or data) resulting from the use or the inability to use the Service Offering. You acknowledge that StratosMedia’s liability for its own negligence may not in any event, exceed the total amount paid by You to us under the Agreement during the 1 month preceding the claim.
17.0 Confidentiality and Publicity
The Recipient may only use Confidential Information in connection with the provision and use of the Service Offering. The Recipient will not disclose Confidential Information during the Term or at any time during the 5-year period following the end of the Term. The Recipient will take all reasonable measures to secure the Confidential Information and avoid disclosure, dissemination or unauthorized use of Confidential Information.
18.0 Force Majeure
StratosMedia will not be liable for any delay or failure to provide the Service Offering where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances resulting in significantly disrupted operations, systemic electrical, telecommunications, or other serious utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
19.0 U.S. Government Rights
If you use the Service Offerings on behalf of the U.S. Government, You are responsible for confirming that the Service offering meets the U.S. Government’s needs and are consistent in any respect with federal or U.S. Government law.
20.0 Import and Export Compliance
You are solely responsible for compliance (including payment of all taxes, duties and bonds) with all applicable import, re-import, export, and re-export control laws and regulations including your transfer and processing of Your Content.
The Agreement details the means for issuing Notices by the respective parties. All Notices must be in the English language. Notices sent to an email address will be deemed to have been received when the email is sent whether or not the email is actually received.
22.0 Waivers and Severability of Terms
The failure of StratosMedia or you to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the other provisions of this Agreement remain in full force and effect.
23.0 Successors and Assigns
Either party shall have the right to assign this Agreement to any successor (whether direct or indirect, by purchase, amalgamation, arrangement, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the party.
24.0 Third Party Rights
Except as provided by Clause 23.0, no person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.
25.0 Governing Law
This Agreement and the relationship between you and StratosMedia shall be governed by the laws of the State of Queensland, Australia.
26.0 Entire Agreement
This Agreement including any amendments signed by both parties constitute the entire agreement between You and StratosMedia and govern Your use of the Service Offering, superseding any prior agreements between You and StratosMedia. This Agreement may be executed in any number of counterparts (including by facsimile or email) and all of those counterparts taken together shall constitute one and the same document.
“Agreement Term” means the period of time stated in this Agreement commencing from the Effective Date that the Service Offering is made available to you.
“Confidential Information” means all non-public information provided by a Discloser that is designated as confidential or that, given the nature of the information reasonably should be understood to be confidential, including information regarding the Service Offering, Your Content, business activities, customer lists, business plans, promotional and marketing activities, finances and other business affairs.
“Discloser” means a party to this Agreement who makes Confidential Information available to a Recipient.
“Due Date” means within 30 days of receipt of an invoice.
“Effective Date” means the date this Agreement is executed by you.
“Recipient” means a party to this Agreement who acquires or receives Confidential Information from the Discloser.
“Service Offering” means the access to the StratosMedia website through the Account login procedure to use the StratosMedia software application via the user interface to create and store Your Content and the ability to manage and program Your Content for display on multiple display devices as provided in Clause 3.0 hereof.
“StratosMedia Site” means http://stratosmedia.com and any successor or related site designated by us.
“Term” has the meaning given to it in Clause 2.0.
“User” means any individual or entity that directly or indirectly through another user accesses or uses the Service Offerings or uses Your Content under your Account.
“Your Content” means software (including machine images), data, text, audio, video, images or other content.