Content Agreement

These Photo Booth Content Usage Terms and Conditions (the "Agreement") shall apply to all Apple Industries, Inc. ("Apple") photo booths (the "Photo Booths") purchased, acquired or operated by you ("Buyer") using proprietary software and content owned by Apple or licensed by Apple from third parties, as may be included on the Apple Network (the "Apple Network"). By using the Content (as hereinafter defined) you are agreeing to this Agreement.

1. Definitions.

"Content" means the Apple Network and all data, information, content, software, technology, designs, intellectual property (whether or not registered) visible or available on, or accessible via, the Apple Network or otherwise provided to Buyer by Apple, whether or not owned or licensed by Apple.

"Content Agreements" means certain agreement between Apple and third parties pursuant to which Apple is granted certain limited rights to use Content. Such Content Agreements are of limited duration and are subject to early termination under certain circumstances.

"Content Owners" means those third parties who have entered into Content Agreements with Apple.

2. License to Use Content.

Apple hereby permits Buyer to use the Content on a non-exclusive basis, solely in the Photo Booths as expressly permitted by, and subject to all of the terms and conditions of, this Agreement.

3. Content.

• All Content is the property of Apple and/or the Content Owners. Buyer hereby agrees not to use, duplicate, replicate, copy, reverse engineer, make derivatives, sell, distribute, display, exploit, or modify any portion of the Content whatsoever. The Content Owners shall retain all right, title and interest in and to all Content on each Photo Booth. Apple shall retain all licensed rights to any and all Content owned by third parties; neither title nor any license shall pass to Buyer or its customers. The Content Owners shall have the right to inspect the Photo Booths and the software used therein to ensure compliance with this Agreement.
• Buyer shall not add to, remove, obscure or otherwise change any legends, notices or labels contained in, displayed in conjunction with or otherwise related to the Content or any other materials provided hereunder, including without limitation any copyright, trademark or other intellectual property notices, license identification notices or parental advisories.
• Buyer shall not change, edit or otherwise make any derivatives of the Content, nor use the Content in any way that may reasonably be construed to constitute an endorsement of any product or service or in any manner that violates the rights of any third party including, without limitation, Content Owners.
• Apple reserves the right at all times, and for any or no reason, to remove, modify or replace any or all Content on the Apple Network, in Apple’s sole discretion. Apple makes no representations or warranties regarding the availability or continued availability of any particular Content.

4. Term and Termination.

(a)        Term. Except as set forth in this Section 4 or elsewhere in this Agreement, this Agreement shall be in effect from the date of signature and as long as any Photo Booth owned by Buyer is connected to the Apple Network and or owned or placed in service by Buyer.  Buyer acknowledges that certain Content is licensed by Apple from Content Owners pursuant to Content Agreements which are of limited duration and subject to early termination in certain circumstances. Buyer’s usage of the Content is subject to such Content Agreements and the limitations and restrictions contained therein.

(b)        Termination by Apple. In addition to Apple’s rights in Section 3(d), Apple may terminate this Agreement and/or, at Apple’s sole election, disable the Photo Booths’ functionality, in the following circumstances:

(i)         Material Breach. Immediately upon written notice to the Buyer pursuant to Section 7(c) in the event: (A) of a breach by the Buyer of this Agreement; (B) the Buyer’s business is, in the sole judgment of Apple, rendered substantially inoperative for any reason; (C) the Buyer attempts to assign this Agreement without prior written consent of Apple; or (D) Apple’s right to use the Content has terminated.

(ii)        Termination At Will. Following thirty (30) days prior written notice by Apple to the Buyer for any other reason or no reason.

(d)        Termination of Rights to Content. Upon termination or expiration of this Agreement, all of Buyer’s rights to use the Content shall immediately cease.

(e)        Temporary Shut Down. In the event that Apple suspects that Buyer or a Photo Booth is in breach of this Agreement or any Content Agreement, Apple may in its discretion immediately shut down such Photo Booth’s access to the Apple Network until such suspected breach has been resolved to Apple’s satisfaction.

5. Warranties and Indemnification.

• Buyer agrees to indemnify and hold harmless Apple, its affiliates, directors, officers, employees, licensors and agents from and against any and all claims, losses, liabilities, damages and expenses, including, without limitation, reasonable attorney fees, that result from any loss of any Content or any breach by Buyer of this Agreement.
• Buyer acknowledges that certain Content is being provided to Buyer through Content Agreements. Buyer agrees that the indemnification set forth in 5(a) above shall include any claims, losses, liabilities, damages and expenses incurred by Apple in connection with such Content Agreements which results from the conduct of Buyer.
• EXCEPT TO THE EXTENT EXPRESSLY STATED HEREIN, THE PARTIES HEREBY AGREE TO EXCLUDE, AND APPLE HEREBY DISCLAIMS, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, STATEMENTS AND LIABILITIES WHETHER OR NOT EXPRESSLY SET OUT IN ANY OTHER DOCUMENT OR IMPLIED BY LAW, STATUTE OR CUSTOM OR WHICH WOULD OTHERWISE BE APPLICABLE THERETO, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PHOTO BOOTHS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPLE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE OF THE PHOTO BOOTHS, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PHOTO BOOTHS, THE APPLE NETWORK OR THE CONTENT.

IN ANY AND ALL EVENTS, APPLE’S LIABILITY FOR DAMAGES UNDER ANY PROVISION OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AGGREGATE AMOUNT PAID BY BUYER TO APPLE FOR THE PHOTO BOOTH.

6. Negative Covenants.

The Buyer shall not, at any time during the Term, engage in any activity which would in any manner be inconsistent or conflict with the terms, conditions and provisions of this Agreement or violate any state, local, federal or international laws.

7. General Provisions.

(a)        Equitable Relief. The Buyer agrees and acknowledges that any breach by the Buyer of this Agreement, could cause irreparable damage to Apple, its affiliates and the owners and/or Content Owners, and that monetary damages alone would not be adequate and, in the event of any such breach, Apple and such Content Owners shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief, without the posting of a bond or other security.

(b)        Assignment. This Agreement may be assigned by Apple at will, including, but not limited to, an assignment to any affiliate of Apple. This Agreement may not be assigned by the Buyer without the prior written consent of Apple.

(c)        Notices. All notices, demands and statements required or permitted hereunder shall be deemed to have been sufficiently served if sent by certified mail, return receipt requested or via a courier service that provides for reasonable proof of delivery, postage pre-paid, addressed to the party intended to be served at its address set forth on the signature page hereof, as the same may from time to time be amended by appropriate notice between the parties.

(d)        Choice of Law and Venue. This Agreement shall be construed in all respects and for all purposes in accordance with the laws of the State of New York without giving effect to principles of conflicts of law. Each party hereby unconditionally and irrevocably consents to the exclusive jurisdiction and venue in the State or Federal courts located in New York City (Manhattan), New York and irrevocably waives any objection (including any objection with respect to venue) that any party may now or hereafter have to the exclusive jurisdiction of said courts, and irrevocably consents to the service of process of said courts in any matter relating to this Agreement by the mailing of process by registered or certified mail, postage prepaid, at the addresses specified in this Agreement.

(e)        Agreement. Except as otherwise set forth herein, this Agreement supersedes all agreements, oral or written, heretofore made by and between the parties hereto, or their respective predecessors in interest, regarding the subject matter hereof. Apple may modify this Agreement upon notice to the Buyer in the event that Apple determines that such modification is required to comply with terms and conditions required by any Content Owners. If any provision in this Agreement is unenforceable, the remaining provisions in this Agreement shall remain in full force and effect.

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