Music at Work Terms and Conditions

Agreement: TouchTunes will provide its digital jukeboxes and may also provide jukebox floor stands (each, a “Floor Stand” and each jukebox with or without any additional Floor Stand, a “Jukebox”) to Customer as set forth on the Music@ Work Order Form (the “Order Form”). Each Jukebox shall only be installed in Customer’s office located in the United States of America (each, a “Location”). TouchTunes shall make available through each Jukebox (i) an interactive background music service pursuant to which musical titles (“Titles”) are chosen and performed on a random, non-interactive, or pre-programmed basis until a user selects one or more Titles to be performed (the “Music Services”) and (ii) the ability to take and email digital photographs (the “PhotoBooth Services” and together with the Music Services, the “Services”). Customer shall ensure that each Jukebox (i) has uninterrupted access to a standard grounded AC (110 volt) continuous electrical power source, (ii) is connected to TouchTunes’ Jukebox server at least once every thirty (30) days for at least three (3) hours and such other times as reasonably requested by TouchTunes and (iii) is not enabled to accept any form of payment for use of the Services by end users. Customer shall be responsible for, and shall pay all fees related to the foregoing, including without limitation, all broadband fees. These Terms and Conditions become valid upon Customer’s execution of the Order Form or use of the Jukebox or the Services.
Equipment. For business purposes only, Customer agrees to lease from TouchTunes the Jukebox, together with all replacements, parts, repairs, additions, and accessions incorporated therein or attached thereto and any and all proceeds of the foregoing (the "Equipment"). Customer agrees that all of the terms and conditions contained in the Order Form and these Terms and Conditions and any supplement is the entire agreement regarding the Services and the Equipment and which supersedes any purchase order or invoice. Customer authorizes TouchTunes to correct or insert missing Equipment identification information and to make corrections to its proper legal name and address. Equipment will be shipped at TouchTunes’ expense.
Installation; Support. TouchTunes (or a TouchTunes authorized third party) shall install the Jukeboxes in the Locations at a date and time mutually agreed upon by the parties (the “Installation Date”) at the cost set forth under Installation Fee on the Order Form, provided that if the installation takes more than two (2) hours, TouchTunes has the right to charge Customer an additional charge of $179 per hour, which shall not be pro-rated by partial hours. Training on the functions of the Jukebox and Services will be provided during such installation. TouchTunes will provide Customer with telephone and/or email technical support for the Jukeboxes and Services and on-site technical support will be provided to Customer at the Locations at TouchTunes’ sole discretion.
Term; Termination. Unless earlier terminated in accordance with the termination rights set forth in these Terms and Conditions, the term shall commence on the Installation Date and shall continue for the time frame set forth in the Order Form (the “Initial Term”). Unless otherwise stated in the Order Form, these Terms and Conditions will renew for twelve (12) month periods (each a “Renewal Term”) unless either party sends the other party written notice of its intent not to renew at least 90 days before the end of the then-current term. “Term” means the Initial Term plus any applicable Renewal Term(s). Either party may terminate these Terms and Conditions with respect to one or more Jukeboxes or terminate these Terms and Conditions in its entirety, effective immediately, upon written notice of termination to the other party if: (i) any representation or warranty of such other party contained herein was not true and complete in all material respects when made; or (ii) such other party has not timely complied in all material respects with any covenant or agreement contained herein to be complied with by it and has not cured any such breach or default within thirty (30) calendar days of receipt of written notice thereof from the notifying party (or within ten (10) business days for any monetary obligation).
Fees. Customer shall pay to TouchTunes the payments as set forth on the Order Form when due, plus any applicable sales, use and property taxes, all of which shall be paid to TouchTunes within thirty (30) days of the date of the applicable invoice. Monthly service fees shall be invoiced monthly in arrears or in advance at TouchTunes’ option beginning on the Installation Date and the first billing month may be pro-rated. All fees and payments owed to TouchTunes by Customer are due and payable in United States Dollars. All amounts due and owing or otherwise payable to TouchTunes under these Terms and Conditions shall bear interest at a rate per annum equal to the lower of one and one-half percent (1.5%) or the maximum rate permitted by applicable law, which interest shall accrue from the date that payment was due. TouchTunes may break out the monthly fees associated with the Services separately on the invoice. TouchTunes may charge an administrative fee if Customer requires TouchTunes to use a third-party billing system, plus any costs to acquire such billing system.
Maintenance and Location of Equipment; Security Interest: At Customer’s expense, Customer agrees to keep the Equipment: (1) in good repair, condition and working order; (2) free and clear of all liens, encumbrances and claims; and (3) only at the Locations where the Equipment is originally installed, and Customer agrees not to move Equipment unless the parties mutually agree. If Customer has given TouchTunes proper written notice of nonrenewal as required in paragraph 4, Customer will make the Equipment available for pick-up at the Location immediately following the termination or expiration of these Terms and Conditions and Customer shall be responsible for the pickup fee as set forth in the Order Form. If Customer fails to provide immediate access to the Equipment, Customer shall be responsible for and reimburse TouchTunes for the then current fair market value of the Equipment. If these Terms and Conditions are deemed to be a secured transaction, Customer grants TouchTunes a security interest in the Equipment to secure all amounts Customer owes TouchTunes under any agreement with TouchTunes, and Customer authorizes TouchTunes to file a financing statement (UCC-1). Customer shall not change its state of organization, headquarters or residence without providing prior written notice to TouchTunes so that TouchTunes may amend or file a new UCC-1. TouchTunes owns the Equipment and Customer has the right to use the Equipment under the terms of this
Equipment Protection: Customer shall keep the Equipment fully insured against risk and loss, with TouchTunes as Customer’s loss payee, in an amount not less than the Equipment MSRP until these Terms and Conditions are terminated or expired. TouchTunes is not responsible for, and Customer shall hold TouchTunes harmless and reimburse TouchTunes for and, if requested, to defend on TouchTunes’ behalf against, any claim for any loss, expense, liability or injury caused by or in any way related to delivery, installation, possession, ownership, use, condition, inspection, removal, return or storage of the Equipment. Customer is responsible for the risk of loss or for any destruction of or damage to the Equipment. Customer shall promptly notify TouchTunes in writing of any loss or damage. No such loss or damage shall relieve Customer of its payment obligations under these Terms and Conditions. If any Equipment is lost, destroyed, stolen or damaged during the Term, Customer shall pay TouchTunes an amount equal to the cost to repair the Equipment and if such Equipment is determined by TouchTunes to be beyond repair, the fair market value of such Equipment prior to any damage as determined by TouchTunes at TouchTunes’ sole discretion. Customer shall not create, incur, assume or allow to exist any consensually or judicially imposed liens or encumbrances on, or part with possession of, any Equipment without TouchTunes’ prior written consent. TouchTunes will retain ownership of and title to all Equipment. The Equipment shall remain TouchTunes’ personal property and shall not under any circumstances be considered to be a fixture affixed to real estate. Customer acknowledges that TouchTunes may affix labels to the Equipment evidencing TouchTunes’ ownership and Customer agrees not to remove, deface or impair the visibility of such labels. Customer agrees to execute and deliver to TouchTunes any statement or instrument that TouchTunes may request to confirm or evidence TouchTunes’ ownership of any Equipment. In addition, Customer irrevocably appoints TouchTunes as its attorney-in-fact to execute and file such statement or instrument in Customer’s name and on its behalf. In the event that these Terms and Conditions is deemed to be a financing agreement or lease, then TouchTunes shall be deemed to have, and Customer hereby grants to TouchTunes, a first priority purchase money security interest in the Equipment and any proceeds, receivables, or products thereof, as security for the prompt and complete payment and performance when due of all of Customer’s obligations hereunder. If TouchTunes so requests, Customer will execute and file financing statements related to the Equipment in each jurisdiction requested by TouchTunes. Customer hereby authorizes TouchTunes to execute and file financing statements pertaining to the Equipment in any applicable jurisdiction.
Warranty. From the Installation Date through the end of the Term (the “Warranty Period”), and subject to Customer’s compliance with its obligations under these Terms and Conditions, TouchTunes warrants to Customer that each such Jukebox will be free from material defects in materials and/or workmanship during the Warranty Period (the “Warranty”). Subject to the foregoing, during the Warranty Period, TouchTunes shall maintain and service each Jukebox at no additional charge to Customer, provided that the Warranty shall not apply to maintenance and service (a) required as a direct or indirect result of the improper or out of the ordinary use of the Jukebox, or (b) caused or contributed to by accident, abuse, neglect of a person other than TouchTunes (whether by Customer or a third party), vandalism, a force majeure event, use of the Jukebox contrary to any instruction by Company, or repair or modification of the Jukebox by a person other than TouchTunes, which, in all cases, such maintenance and service will be completed by TouchTunes at Customer’s sole cost. During the Warranty Period, Jukeboxes determined by TouchTunes to be defective, and that are covered by the Warranty, will be either repaired or replaced in TouchTunes’ sole discretion. It is Customer’s responsibility to promptly notify TouchTunes if there is, or if Customer suspects that there may be, a defect in material or workmanship in any Jukebox. If Customer requests that TouchTunes arrange an on-site installation or service visit related to a Jukebox and such on-site installation or service visit is cancelled with less than 48 hours’ notice or TouchTunes is unable to access the Jukebox, Customer agrees to pay the cost of any such visit. The Warranty provided by TouchTunes in this Section 8 is the sole and exclusive warranty provided to Customer by Company in connection with the Jukebox.
Intellectual Property. As between TouchTunes and Customer, TouchTunes and its licensors own, control or exclusively maintain all of the Titles, music, content (including album art), software, patent (pending and/or registered) and any other intellectual property recorded or installed on, embedded in, or associated with the Equipment, the Services and any other product (including any mobile application) manufactured by TouchTunes (each, a “Product”) and any other TouchTunes intellectual property (collectively, the “Intellectual Property”). Customer may use the Intellectual Property solely for purposes of operating the Jukeboxes in accordance with these Terms and Conditions. Customer shall not infringe or take any other action that could adversely affect in any respect TouchTunes’ or its licensors’ right, title, or interest in, to, or under any of the Intellectual Property. In the event of a material breach of these Terms and Conditions, and/or upon termination of these Terms and Conditions, in order to protect the intellectual property rights of TouchTunes and its licensors, TouchTunes shall have the right to disable the functioning of the Intellectual Property or otherwise erase the Intellectual Property on the Equipment and remove all music software and other Intellectual Property from the Equipment, and all rights connected with or related to the Equipment shall terminate. Customer acknowledges that upon the termination of these Terms and Conditions, all rights to download, store, publicly perform or otherwise use the music, software and other Intellectual Property contained in or stored on the Equipment shall terminate. Customer hereby grants to TouchTunes a limited, non-exclusive, royalty-free license to use any copyright, trade name, trademark, trade dress, service mark or images provided to TouchTunes by Customer in connection with TouchTunes’ provision of the Services hereunder.
Assignment: Customer has no right to sell, transfer, assign or sublease the Equipment or these Terms and Conditions, without TouchTunes’ prior written consent. Any attempted sale, transfer, assignment or sublease by Customer in violation of the foregoing shall be null and void and of no force or effect. TouchTunes may sell, assign, or transfer these Terms and Conditions without notice. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.
Use of Jukebox; Data. So long as Customer operates all Equipment in accordance with the terms and conditions of these Terms and Conditions and otherwise complies with its obligations hereunder, TouchTunes shall be responsible for the payment of all royalties and other amounts payable to performers or artists or their representatives in respect of the play of Titles on such Equipment. Customer shall not alter, remove, or replace any trademark or service mark or notice thereof or notice of patent, copyright, or other such proprietary marking or insignia displayed or otherwise appearing on any Equipment. As between TouchTunes and Customer, TouchTunes shall own all data derived from or related to the provision of the Services and the Equipment, including without limitation photographs or other digital images taken though use of the Jukebox, music selection data and any and all personal information input into the Jukebox (e.g. email addresses). TouchTunes shall (i) comply with all applicable United States laws governing the collection, retention and use of personal information and (ii) if requested, provide Customer with access to play usage data derived from the Services and Jukeboxes, provided that such data will not include any personal information input into the Jukebox or otherwise connected to the use of the Jukebox. Users of the Jukebox shall also be subject to TouchTunes’ privacy policy and terms of use, which shall be available on the Jukebox and may be updated from time to time.
Force Majeure. Neither party hereto shall be liable for any default or delay in the performance of its obligations hereunder if and to the extent such default or delay is caused, directly or indirectly, by any event beyond such party’s reasonable control. If any event of force majeure prevents either party hereto from timely performing all of its obligations hereunder (other than the payment of money), the non-performing party shall be excused from further performance or observance of its obligations so affected for so long as such circumstances prevail and such party continues to use all commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.
Confidentiality: During the Term, either party may become aware of non-public information of the other party (“Confidential Information”). Each party hereby agrees to retain the Confidential Information of the other party (including these Terms and Conditions) in confidence and shall not use for its own benefit or for the benefit of any third party, publish or disclose such Confidential Information at any time during the Term or afterwards. Confidential Information does not include information that (a) is in the public domain through no fault of the disclosing party or its representatives and without breach of these Terms and Conditions, (b) was properly known to the disclosed party without, to its knowledge, an obligation of confidentiality, prior to disclosure by the disclosing party, (c) was properly disclosed to the disclosed party by another person without, to its knowledge, an obligation of confidentiality or (d) was independently developed by the disclosed party without the benefit of the Confidential Information. Upon the termination of these Terms and Conditions, each party agrees to either return or destroy any Confidential Information of the other party and upon written request, agrees to certify any such destruction in writing. If a party is required to disclose Confidential Information of the other party by law, regulation or legal process that party shall give prompt written notice to the other party so it may seek an appropriate protective order or other remedy. In addition, that party shall use commercially reasonable efforts to obtain confidential treatment of the Confidential Information and shall only disclose that portion of the Confidential Information as is required by law. Company further agrees not to decompile, disassemble or otherwise reverse engineer any Confidential Information provided hereunder by TouchTunes, or use any similar means to discover its underlying composition, structure, source code or trade secrets. Neither party shall issue a press release or otherwise publicize the terms of these Terms and Conditions or the relationship of the parties without the prior consent of the other party. Customer understands that TouchTunes may have access to information about an identifiable individual (including its employees or contractors) and which may constitute information governed by any applicable privacy or data protection law, statute or regulation (“Customer Data”) and users of the Services may be subject to a separate privacy policy applicable to such Customer Data. TouchTunes shall take commercially reasonable steps to ensure that it will at all times be in compliance with all applicable laws relating to privacy and the collection, use and disclosure of Customer Data and shall only use or disclose Customer Data to fulfill its obligations under the Agreement.
Warranty Disclaimers: EXCEPT FOR THE WARRANTY SET FORTH HEREIN, TOUCHTUNES DOES NOT MAKE TO CUSTOMER OR ANY EMPLOYEE, REPRESENTATIVE, customer or patron THEREOF, and hereby disclaims, ANY WARRANTY, whether EXPRESS, IMPLIED, statutory or otherwise, OF ANY KIND, NATURE, OR DESCRIPTION WHATSOEVER IN RESPECT OF ANY EQUIPMENT, product OR THE SERVICES TO BE PROVIDED HEREUNDER. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, TOUCHTUNES HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL IMPLIED WARRANTIES OF ANY KIND, NATURE, OR DESCRIPTION WHATSOEVER IN RESPECT OF ANY EQUIPMENT, product, AND SERVICES, OR THE CONDITION OR PERFORMANCE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEAL, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. CUSTOMER AGREES THAT TOUCHTUNES WILL NOT BE RESPONSIBLE TO PAY CUSTOMER ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES FOR ANY DEFAULT, ACT OR OMISSION BY ANYONE.
Indemnification. Customer shall indemnify, defend, and hold TouchTunes, its affiliates, and its and their officers, directors, agents, representatives, contractors, licensors, suppliers and employees harmless from and against any and all damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and costs) incurred or suffered by TouchTunes resulting from any suit, claim, demand, investigation, proceeding or action by any third party arising out of or relating to any breach or violation by Customer of these Terms and Conditions, including Customer’s representations, warranties, agreements or covenants contained herein. TouchTunes may also use any or all of the remedies available to TouchTunes under the
Limitation of liability. IN NO EVENT SHALL CUSTOMER (OR ANY CUSTOMER AFFILIATED PARTY) BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS AND WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, INCLUDING THE PROVISION, USE OR INABILITY TO USE THE SERVICES (INCLUDING THE CUSTOMER CONTENT AND ANY THIRD PARTY CONTENT), EQUIPMENT, SOFTWARE OR OTHER SERVICES, MATERIALS OR PRODUCTS, EVEN IF CUSTOMER OR ANY CUSTOMER AFFILIATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE EXCLUSIVE REMEDIES STATED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL TOUCHTUNES’ AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO TOUCHTUNES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO CUSTOMER’S CLAIM ARISING UNDER OR RELATING TO THESE TERMS AND CONDITIONS.
Governing Law; Jury Waiver; General: These Terms and Conditions may be modified only by written agreement and not by course of performance. These Terms and Conditions will be governed by and construed in accordance with the law of the state of New York. Customer consents to jurisdiction and venue in any state or federal court located in New York, NY and waives the defense of inconvenient forum. For any action arising out of or relating to these Terms and Conditions or the Equipment or the Services, CUSTOMER AND TOUCHTUNES WAIVE ALL RIGHTS TO A TRIAL BY JURY. Any provision of these Terms and Conditions which is held to be invalid or unenforceable for any reason shall be enforced to the extent of its validity or enforceability without affecting the validity or enforceability of the remaining provisions herein. The parties acknowledge that the relationship among them is in the nature of independent contractors. These Terms and Conditions and any exhibits and schedules hereto, contains the entire agreement of the parties concerning the subject matters hereof and may not be amended except by a written instrument signed by each party hereto.

Rev Dec. 8, 2021