Terms and Conditions
Last Revised: April 25, 2019
Customer’s purchase and use of the software and services known as CIELO is governed by the terms and conditions set forth in this Agreement. Purchase and use of other CIELO products and services (e.g., Cielo Command, Cielo Ad Reporting, or Cielo QR) are governed by these terms and conditions and the applicable Product-Specific Supplement.
This Agreement is a legally binding contract between Customer and CIELO. By downloading, installing or otherwise accessing or using the Service, Customer acknowledges and agrees to be bound by the terms and conditions of this Agreement. If Customer does not accept these terms and conditions, it is not permitted to download, install, access or otherwise use the Service.
(a) “Administrator” shall mean an Authorized User with the authority to administer Customer’s subscription and designate additional Authorized Users and/or Administrators.
(c) “Authorized User” shall mean the individual owners, shareholders, members, officers, directors, employees, temporary employees and/or independent contractors of Customer designated as authorized users of the Service by an Administrator.
(d) “CIELO” shall mean and refer to CIELO Enterprise Solutions, Inc, a Delaware corporation.
(e) “Commercial License” shall mean described in Section 2.1 of these General Terms and Conditions.
(f) “Confidential Information” shall mean the Content (except as otherwise provided in this Agreement) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the effective date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.
(g) “Content” shall mean any information Customer uploads or posts to the Service and any information provided by Customer to CIELO in connection with the Service, including, without limitation, information about Customer’ Authorized Users.
(h) “Customer,” shall mean and refer to the purchaser of and subscriber for the Service.
(i) “General Terms and Conditions” shall mean these CIELO General Terms and Conditions.
(j) “Originating Subscriber” shall mean the individual who initiated the subscription for the Service, and the only individual with the authority to administer Customer’s Subscription unless and until one or more other individuals are designated as Administrators.
(l) “Product-Specific Supplement” shall mean the supplemental terms and conditions associated with the use of additional CIELO products or services (e.g., CIELO Command, CIELO Ad Reporting, and Cielo QR).
(m) “Sales Order” shall mean Customer’s CIELO Sales Order and Subscription Agreement.
(n) “Service” shall mean the software and services known as CIELO provided by CIELO pursuant to this Agreement, including, without limitation, any updates and/or modifications thereto and any accompanying documentation. Additional CIELO products and services may be incorporated into the overall Service provided hereunder, pursuant in each case to an applicable Sales Order and the terms of an associated Product-Specific Supplement. If and when made available by CIELO, Customer may access the Service through a mobile application, and the mobile application will be considered part of the Service.
(o) “Security Emergency” shall mean a violation by Customer of this Agreement that (a) could disrupt (i) the provision of the Service; (ii) other subscribers use of the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.
(p) “Subscription Period” shall mean the subscription period for the Commercial License set forth in Customer’s Sales Order.
2. Commercial License & Use of the Service
2.1 Customer is granted a limited, non-exclusive, non-transferable license to access and use the Service for the Subscription Period set forth in Customer’s Sales Order (the “Commercial License”). Pursuant to this Commercial License, Customer may only use the Service for its internal business purpose of managing the hardware and components of Customer’s movie theater(s).
2.2 Each Commercial License is valid for one (1) authorized theater screen for the Subscription Period. Customer shall not use of the Service for a greater number of theater screens than the total quantity of Commercial Licenses set forth in Customer’s Sales Order.
2.3 The Service Level of Customer’s Commercial License is set forth in the applicable Sales Order, including the level of support CIELO will provide for the Service.
2.4 This Commercial License is not transferable to any third party. Customer may not sell, rent, lease, sub-license, or otherwise transfer any rights under this Agreement. In the event that such transfer activity is expressly permitted by applicable law notwithstanding this limitation, the transfer will be contingent upon the transferee’s agreement to be bound by all of the terms of this Agreement.
2.5 Customer’s Authorized Users will not reverse engineer, modify, adapt, decompile, disassemble or otherwise tamper with the Service or otherwise attempt to discover any source code (except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation), or modify another website so as to falsely imply that it is associated with the Services, CIELO or another software or service provided by CIELO.
2.6 Customer’s Authorized Users will not reproduce, duplicate, copy, produce derivatives of, sell, resell or exploit access to the Service, use of the Service or any portion of the Service, including, without limitation, any visual design elements.
2.7 Customer’s Authorized Users will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.8 Customer’s Authorized Users will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email (“spam”), short message service (“SMS”) messages, viruses, self-replicating computer programs (“worms”) or any code of a destructive or malicious nature.
2.9 Authorized Users who use the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that the public will have access to such Content, and CIELO reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to such public Content that violates the terms of this Agreement, including, but not limited to, removal of such public Content.
2.10 CIELO reserves the right at any time and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that CIELO will notify Customer of any modification that materially reduces the functionality of the Service by email or by other reasonable means prior to enactment. Customer’s continued use of the Service following enactment will constitute acceptance of the modification.
2.11 CIELO reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two (2) business days’ notice prior to any such suspension. Such notice shall be provided to Customer in advance via notification through the Service, email or other notification method deemed appropriate by CIELO. CIELO will endeavor to confine planned operational suspensions with a best effort to minimize disruption to Customer, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, CIELO will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.12 CIELO stores all Content on redundant storage servers. Customer may also elect to replicate all Content associated with the subscription on its own storage device.
2.13 Customer grants CIELO a non-exclusive, royalty free right for the duration of its Commercial License, to use the Confidential Information for the sole purpose of performing under this Agreement in accordance with the terms hereof. Such rights shall include permission for CIELO to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1.
3. Access to and Use of the Service
3.1 The Service allows Customer to remotely manage its movie theater hardware and components from a computer or other supported device. The Service includes a user agent installable in the cloud and/or on hardware purchased from CIELO that allows Customer to access and manage its movie theater over the CIELO cloud-based platform. The Service also allows Customer to access and manage its movie theater through CIELO’s website: https://cieloconnects.com. The Service will automatically notify Customer electronically regarding events related to its movie theater hardware and components based on certain customizable preferences. By using the Service, Customer consent to receiving such electronic notifications and communications. If Customer accesses other Cielo products or services (e.g., CIELO Command, CIELO Ad Reporting, and Cielo QR) in connection with Cielo Connects, Customer shall additionally be subject to and comply with the terms of the applicable Product-Specific Supplement, which shall be incorporated by reference herein.
3.2 CIELO shall use commercially reasonable efforts to make access to its web services (accessible at https://portal.cieloconnects.com for CIELO QR and at https://portal.cielocinema.com for CIELO Cinema) available twenty-four (24) hours per day, seven (7) days a week with a minimum uptime level of ninety-nine percent (99%) measured on an aggregate monthly basis. Such service availability does not, however, include regularly scheduled maintenance.
3.3 In order to use the Service, Customer must grant static network access to CIELO. If Customer does not grant static network access to CIELO or agree to acquire hardware to establish such network access, CIELO will not be obligated to provide the Service.
3.4 An individual is only permitted to access and use the Service if he/she is an Authorized User. Authorized Users are required to register by providing their full legal name, a valid email address and any other information reasonably requested by CIELO
3.5 Each Authorized User will be provided with a unique identifier to access and use the Service (a “Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.6 The initial Administrator shall be the Originating Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
3.7 Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
3.8 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
3.9 In connection with Customer’s access and/or use of the Service, Customer’s Authorized Users must not: (a) engage in any activity that could damage, disable, impair, interrupt, or interfere with the Services, including networks and servers connected to the Service; (b) introduce a virus, worm, Trojan horse, or any other malicious or harmful software code, data, or file that may damage, interference with, intercept or expropriate any system, data, personal information or property of another; (c) attempt to gain unauthorized access to accounts not owned by Customer, or to any connected network or servers to the Service through hacking, phishing, or other means; (d) use the Service on a service bureau or shared basis; (e) host the Service to be accessible by third parties; (f) sell, lease, or rent access to or use of the Services or otherwise transfer any rights to use the Services under this Agreement; (g) utilize the Service in connection with any activity that would constitute a violation of any applicable law, regulation or ordinance; (h) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (i) defame, defraud, abuse, harass, stalk, threaten, or otherwise violate any legal rights (such as rights of privacy and publicity) of others; (j) transmit any files or materials protected by intellectual property laws, unless Customer owns or controls the rights thereto or has received the necessary consent to do the same.
4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
5.1 CIELO will provide a best practices method of authentication for accessing the Service, including mechanisms that:
(a) allow for user password management;
(b) transmit passwords in a secure format; and
(c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
5.2 Customer will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.3 Customer will implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify CIELO upon suspicion that a username and password has been lost, stolen, compromised, or misused.
5.4 At all times, CIELO and any third party vendors and hosting partners CIELO utilizes to provide the Service will:
(a) use reasonable information security practices for transmitting and storing Customer Content, adhering to industry standards;
(b) employ reasonable information security practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management; and
(c) ensure CIELO’s host facilities maintain industry standards for security and privacy.
5.5 CIELO will report to Customer, with all relevant details, any event that CIELO reasonably believes represent unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). CIELO will make such report within 48 hours after learning of the Security Breach.
5.6 In the event of a Security Breach, CIELO will (a) cooperate with Customer to identify the cause of the breach and to identify any affected movie theater and/or Content; (b) assist and cooperate with Customer in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Customer in any litigation or investigation against third parties that Customer undertake to protect the security and integrity of its movie theaters and Content; and (d) take reasonable measures to mitigate the cause of the Security Breach.
6. Legal Compliance
6.1 CIELO reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
6.2 If CIELO is required by law to make any disclosure of Confidential Information that is prohibited or otherwise constrained by this Agreement, CIELO will provide Customer with prompt written notice (to the extent permitted by law) prior to such disclosure so that Customer may seek a protective order or other appropriate relief. Subject to the foregoing sentence, CIELO may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
7. Intellectual Property
7.1 Customer acknowledges that it is obtaining a Commercial License to use the Service for its internal business purposes. No ownership rights are being conveyed to Customer under this Agreement. CIELO retains ownership and control of all intellectual property inherent in, associated with, or related to the Service, including, but not limited to, copyrights, patent rights, trademarks, trade dress, or service mark rights, whether registered or unregistered, arising under Federal, State, or Common-Law, as well as confidential or commercially sensitive information, such as trade-secrets.
7.2 Customer acknowledge that the Service is comprised of confidential, valuable and proprietary trade-secrets which belong to CIELO. Except as expressly provided by this Agreement, under no circumstances may any portion of the software associated with the Service, or any modified version of such software be distributed, disclosed, or otherwise made available to a third party by Customer.
7.3 Customer shall not use the CIELO product names, logos, or trademarks, unless first expressly authorized to do by CIELO in writing.
7.4 This Section 7 shall survive the expiration or earlier termination of this Agreement.
CIELO expressly reserves the right to, at any time and from time to time, modify, suspend, or discontinue the Service or any parts of the Service at our sole discretion. CIELO reserves the right to amend these General Terms and Conditions and/or associated Product-Specific Supplements, at any time and from time to time. In the event of material changes to these General Terms and Conditions or a Product-Specific Supplement, CIELO will notify Customer of these changes by email or by other reasonable means prior to their enactment. Customer’s continued use of the Service after enactment will constitute acceptance of these changes.
9. Suspension and Termination of Service
9.1 CIELO reserves the right to investigate any potential violations of this Agreement, and may, in its sole discretion, terminate or suspend Service if a material violation is not resolved to CIELO’s reasonable satisfaction within thirty (30) days of our providing Customer with written notice regarding the violation.
9.2 CIELO may, in its sole discretion, suspend Customer’s use of the Service without notice for actions that create a Security Emergency until the situation has been resolved.
10. Limited Warranty
10.1 CIELO warrants solely to Customer that the Service, used under a valid Commercial License, will perform and function substantially as advertised or described in any materials that accompany the Service, during the applicable Subscription Period. CIELO does not warrant or guarantee that the use of the Service will be secure, uninterrupted or error free at all times and in all circumstances, nor that program errors will always be corrected. This limited warranty shall not apply to any error or failure resulting from (a) machine error, (b) Authorized Users’ failure to follow operating instructions, (c) negligence or accident, or (d) modifications to the Service by any person or entity other than CIELO. This limited warranty is only valid if CIELO receives written notice of a breach of warranty no later than thirty (30) days after the events giving rise to the breach.
10.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, CIELO DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE SERVICE. NOTHING IN THIS SECTION 10.2 SHALL MODIFY CIELO’S OBLIGATION TO INDEMNIFY CUSTOMER AS REQUIRED BY SECTION 12.2 OF THIS AGREEMENT.
Limitation of Liability
CUSTOMER EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT ITS SOLE RISK. UNDER NO CIRCUMSTANCES SHALL CIELO, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING, BUT NOT LIMITED, TO RELIANCE BY CUSTOMER ON ANY INFORMATION OBTAINED THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, INCLUDING, WITHOUT LIMITATION, COMPUTER “VIRUSES”, “WORMS”, “BUGS”, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO CIELO RECORDS, PROGRAMS OR SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, STRICT LIABILITY OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF CIELO HAS BEEN ADVISED OF OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, SOFTWARE AND SERVICES AVAILABLE THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. THESE DISCLAIMERS ARE NOT APPLICABLE TO CIELO’S OBLIGATIONS SET FORTH IN SECTION 12.2 OF THIS AGREEMENT; HOWEVER, IN NO EVENT SHALL THE LIABILITY OF CIELO ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE OR THIS AGREEMENT EXCEED THE TOTAL AMOUNT CUSTOMER HAS PAID FOR THE SERVICE PURSUANT TO THIS AGREEMENT WITHIN THE SIX (6) MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CIELO OR AN AUTHORIZED RESELLER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THIS SECTION 11 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
12.1 Customer hereby agrees to indemnify and hold harmless CIELO from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including reasonable attorneys’ fees, which arise from or relate to the following:
(a) Authorized Users’ breach of any obligation stated in this Agreement, and
(b) Authorized Users’ negligent acts or omissions.
CIELO will provide prompt notice to Customer of any indemnifiable event or loss. Customer will undertake, at Customer’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to CIELO; however, CIELO reserves the right to participate in the defense of the claim, suit, or proceeding, at CIELO’s expense, with counsel of CIELO’s choosing.
12.2 CIELO shall defend, indemnify and hold Customer harmless against any loss, liability, judgment, obligation, penalty, damage, cost or expense, including reasonable attorneys’ fees, in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Customer: (i) promptly gives written notice of the Claim to CIELO (provided, however, that the failure to so notify shall not relieve CIELO of its indemnification obligations unless CIELO can show that it was materially prejudiced by such delay and then only to the extent of such prejudice); (ii) gives CIELO sole control of the defense and settlement of the Claim (provided that CIELO may not settle any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to CIELO, at CIELO’s cost, all reasonable assistance requested; however, CIELO shall not be required to indemnify Customer in the event of: (x) modification of the Service by Customer in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by CIELO to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.
13.1 Customer acknowledges and agrees that CIELO may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run and provide the Service.
13.2 CIELO may provide the ability to integrate the Service with third party products and services that Customer may use at Customer’s option and risk. Access to and use of any third party products and services are subject to the separate terms and conditions required by the providers of the third party products and services. Customer agrees that CIELO has no liability arising from Customer’s use of any integrations or arising from the third party products and services. CIELO reserves the right to modify or cancel the integrations at any time without notice.
13.3 Customer will not export, re-export, sell, transact, or otherwise transfer the Service to anyone who is a Specially Designated National per the Office of Foreign Assets Control of the Department of the Treasury of the United States of America, or to any person who has been prohibited from transacting in exports in or from the U.S. by any federal agency. Customer also agrees not to export, re-export, sell, transact, or otherwise transfer the Service to any destination or person that is within a country or territory which the U.S. Government has embargoed.
13.4 The Service and any supporting documentation are “commercial items” within the definition of 48 C.F.R. §2.101 in that it consists of “commercial computer software” and “computer software documentation” as defined in 48 C.F.R. §2.101. If the Service and/or any supporting documentation are licensed to the U.S. Government, any agency thereof, or any agent acting on behalf of the U.S. Government, the Commercial License will grant only those rights as are granted to all other licensees as set forth in this Agreement, consistent with 48 C.F.R. §12.212 and/or 48 C.F.R. §227.7202 et. seq.
13.5 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
13.6 If any provision of this Agreement is held illegal or unenforceable in any proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement remain legal and enforceable, the remainder of this Agreement shall remain in full force and effect.
13.7 Any failure or delay in performance by either party shall be excused if and to the extent caused by an Act of God (fire, flood, earthquake, storm, hurricane or other natural disaster), war or civil disorder, invasion, act of foreign enemies, hostilities, terrorism, government actions, lockout or interruption or failure of electricity of network service, or other cause beyond the reasonable control of the parties.
13.8 This Agreement constitutes the entire agreement between Customer and CIELO and governs Customer’s Authorized Users use of the Service, superseding any prior agreements between Customer and CIELO (including, but not limited to, any prior versions of this Agreement).
13.9 This Agreement will be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws of the State of Florida, without regard to the conflict of laws principles thereof.
13.10 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, (i) CIELO may assign its rights to receive and collect the Commercial License fees to third party finance providers, at any time and from time to time, and (ii) either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
13.11 In the event any legal proceeding is commenced in connection with any matter arising out of or relating to this Agreement, the prevailing party in such litigation will be entitled to recover its reasonable attorneys’ fees and costs incurred in connection with such proceeding, including upon appeal.
13.12 This Agreement sets forth the entire agreement between Customer and CIELO regarding the Service and the Commercial License. Customer agrees that there are no representations or obligations regarding its Commercial License other than those reflected in this Agreement, and that it is not relying on any representations or obligations regarding its Commercial License other than those reflected in this Agreement.
- CIELO Command – Supplemental Terms and Conditions
- CIELO Ad Reporting – Supplemental Terms and Conditions
- CIELO QR – Supplemental Terms and Conditions
SUPPLEMENTAL TERMS AND CONDITIONS
Last Revised April 25, 2019
This Product-Specific Supplement is part of an Agreement for the provision of Service between CIELO and Customer. This supplement applies specifically to CIELO Command, and only to the extent access has been purchased under an applicable Sales Order (the “CIELO Command Service”). Capitalized terms used in this Product-Specific Supplement but not defined herein have the meanings assigned to them in CIELO’s General Terms and Conditions.
- Description of the CIELO Command Service
The CIELO Command Service allows Customer to remotely monitor the movie theater hardware and components of its customers using CIELO, the software (“CIELO”). The CIELO Command Service also includes some limited management functionalities. The CIELO Command Service is a cloud-based platform and can only be used through supported internet browsers, and mobile applications (if applicable).
- Commercial License
Subject to the terms of the Agreement, CIELO grants Customer a limited, non-exclusive, non-transferable license to use the CIELO Command Service for the purpose described herein. The CIELO Command Service is hereby incorporated into the definition of “Service” under the General Terms and Conditions for the Subscription Period.
- Additional Limitations
In addition to the restrictions and limitations set forth otherwise in the Agreement, Customer may only use the CIELO Command Service for the purpose of monitoring and managing the movie theater hardware and components of its customers that have signed a written authorization for Customer to access information regarding their movie theater hardware and components as CIELO does, and to authorize and agree to Customer having such access.
CIELO AD REPORTING
SUPPLEMENTAL TERMS AND CONDITIONS
Last Revised April 11, 2019
This Product-Specific Supplement is part of an Agreement for the provision of Service between CIELO and Customer. This supplement applies specifically to CIELO Ad Reporting, and only to the extent access has been purchased under an applicable Sales Order (the “CIELO Ad Reporting Service”). Capitalized terms used in this Product-Specific Supplement but not defined herein have the meanings assigned to them in CIELO’s General Terms and Conditions.
- Description of the CIELO Ad Reporting Service
The CIELO Ad Reporting Service allows Customer to access advertising reporting and compliance for exhibitors’ playback of advertisements and run playback reports for ads to ensure exhibitor compliance. The CIELO Ad Reporting Service is a cloud-based platform and can only be used through supported internet browsers, and mobile applications (if applicable).
- Commercial License
Subject to the terms of the Agreement, CIELO grants Customer a limited, non-exclusive, non-transferable license to use the CIELO Ad Reporting Service for the purpose described herein. The CIELO Ad Reporting Service is hereby incorporated into the definition of “Service” under the General Terms and Conditions for the subscription period set forth in your Sales Order and Subscription Agreement.
- Additional Limitations
In addition to the restrictions and limitations set forth otherwise in the Agreement, Customer may only use the CIELO Ad Reporting Service for the purpose of accessing advertising reporting to be able to view reporting and compliance for Exhibitors’ playback of advertisements and run playback reports for ads to ensure Exhibitor compliance during the Subscription Period. For the purpose of this Agreement, an “Exhibitor” means a third party that has signed a written authorization for Customer to access information regarding their movie theater hardware and components for the purpose described herein, and to authorize and agree to Customer having such access.
SUPPLEMENTAL TERMS AND CONDITIONS
Last Revised April 8, 2019
This Product-Specific Supplement is part of an Agreement for the provision of Cielo QR as part of the Services (the “CIELO QR Service”) by Cielo and applies to any CIELO user, including but not limited to Authorized Users, end users, or any Customer, who accesses CIELO QR (each, a “CIELO QR User”, “you”, or “your”). Capitalized terms used in this Product-Specific Supplement but not defined herein have the meanings assigned to them in CIELO’s General Terms and Conditions. To the extent of any conflict between the terms of this Product-Specific Supplement and CIELO’s General Terms and Conditions with respect to the subject matter of this Product-Specific Supplement, the terms of this Product-Specific Supplement will govern.
1. Description of CIELO QR Service. The CIELO QR Service allows Customer to create personalized signs with embedded multi-use QR codes that Customer’s end customers can scan to leave feedback and that Customer’s employees and other service providers can also scan to confirm completion of work. The CIELO QR is a cloud-based platform and can only be used through supported internet browsers, and mobile applications (if applicable). Your use of the CIELO QR Service (including use by any Authorized Users) must comply at all times with CIELO’s General Terms and Conditions and all applicable laws. You may only access the CIELO QR Service using the interface provided or approved by Cielo.
2. QR Content. You hereby authorize Cielo to use, store, and process any photos, text, information, and other data submitted by you or your Authorized Users in connection with the CIELO QR Service (“QR Content”) for the purpose of providing the CIELO QR Service to you.
a. You hereby acknowledge that the quality and substance of the CIELO QR Service is conditional upon (a) your timely provision of all necessary QR Content as requested by Cielo and (b) such QR Content being true and accurate, including with respect to assigning and designating unique QR codes to the correct location and area. You shall solely be responsible for providing Cielo with true and accurate QR Content, and Cielo shall have no liability with respect to the CIELO QR Services if you fail to provide or provide false or inaccurate QR Content.
b. Each CIELO QR User represents and warrants it has obtained all necessary rights, releases and permissions to submit all such QR Content to CIELO and to grant CIELO the rights granted hereunder and (ii) the QR Content and its submission to CIELO will not violate (1) any applicable law, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of the CIELO User’s or third-party policies or terms governing such QR Content.
3. Feedback. You may choose to submit comments, questions, ideas, suggestions or other feedback relating to the CIELO QR Service (“Feedback”). Cielo may, in connection with any of the Services, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. You hereby grant (and shall cause your end users to grant) Cielo the foregoing rights. No Feedback will be considered Confidential Information of the CIELO QR User, and nothing in this Agreement limits Cielo’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
4. Cielo Insights. Cielo may provide or make available CIELO Insights as part of the CIELO QR Service. As between the parties, CIELO is and shall be the sole owner of all CIELO Insights. “CIELO Insights” means any inferences, insights, recommendations, data analytics, output, predictive information or other data that is sufficiently different from QR Content such that QR Content cannot be reverse engineered or otherwise identified from analysis or further processing.
5. Electronic Signatures. The CIELO QR Services may include features which require electronic signature of certain CIELO QR Users. You hereby consent and agree that any electronic signatures you submit through the CIELO QR Services shall be treated, for purpose of validity, enforceability and admissibility, the same as hand-written signatures and Cielo may rely on such electronic signatures as if such signatures were originals.