TERMS & CONDITIONS

Terms & Conditions

License General Terms & Conditions
1. Definitions

a."Ambient Content" means any music, messaging, video, text and other content that is owned or validly licensed by Ambient and is provided by Ambient to Licensee pursuant to these terms and conditions.

b."Content" means content of any kind contained within the Ambient applications and Services.

c."Excluded License" means any license that requires the software that is subject to such license or other software combined, linked, and/or distributed with such software be:
(i) disclosed or distributed in source code form;
(ii) licensed for the purpose of making derivative works;
(iii) redistributable at no charge; or
(iv) referenced by explicit notice within all copies or copies of substantial portions thereof.

d.“Licensee” means an authorised Ambient subscriber.

e."Licensee Content" means any music, messaging, video, text and other content provided by Licensee to Ambient for use in the provision of the Services pursuant to the terms and conditions of this License.

f.“Location” means any premises within the Territories occupied by Licensee for personal or business purposes.

g."Media Services" means the broadcast of music and video by Ambient for use on Licensee’s equipment and/or Player(s) (and the refreshment and temporary caching for playout of such Content) for the License Period(s) at the Location(s).

h.“Rights Managed Music” means the restricted repertoire of music that can be selected within the Software which free and clear of any obligation to pay any royalties to any applicable performance rights society.

i."Services" means the Media Services and other services provided by Ambient to Licensee pursuant to this agreement.

j."Third Party Content" means any music, messaging, video, text and other content that is neither Ambient Content or Licensee Content and is used, accessed and/or otherwise available as part of the Services (including, without limitation, User Content (as defined below) and Third Party Services (as defined below).

k.“Territories” means any territory in which Ambient offers the Service from time to time (as advertised on its website www.ambient.fm).

2. Services

During a current subscription to the Service, and subject to the terms and conditions of this License, Ambient shall provide Licensee with Services as set forth herein and as otherwise agreed to by the parties in writing.

3. Delays

Ambient will use reasonable efforts to deliver all Services to Licensee under this agreement. In the event of a delay, Ambient will advise Licensee as soon as possible of a new date for performance. If the timetable for performance of any Services are delayed as a result of any of the following events, then the timetable for performance of the Services will be extended for the period of time that the Services delivery has been delayed as a result of such events: delay by Licensee in the performance of Licensee’s responsibilities; an event of force majeure as described in Section 26; or a change in the scope of Services to be provided.

4. Acceptance

Licensee acknowledges and agrees that Licensee is responsible for ensuring that all Services performed are accurate and meet Licensee’s requirements. Unless the parties agree to alternative acceptance criteria in writing, Licensee will be deemed to have fully accepted all Services upon delivery.

5. Ambient Player(s)

Where applicable and so provided Ambient agrees to sell and/or lease to Licensee playback device(s) (the “Player(s)”) for the price and in accordance with the terms and conditions set forth in this agreement. Licensee shall exercise a reasonable standard of care with respect to protecting and maintaining each Player(s) against damage, peril and theft, including without limitation protection against water, moisture and/or impact damage. At all times during the Term (as defined below), Licensee shall at its own expense insure each Player(s) for its full value against all loss and damage with reputable insurers and under forms of policy satisfactory to Ambient.

6. Ambient Software and Licenses

The software used to provide the Services (“Software”) including, but not limited to the software residing on the Player(s) (“Player(s) Software”), is protected by Ireland and international copyright laws and treaties and is licensed, not sold, to Licensee for the Term. Except for the limited licenses set forth in this License, as between Licensee and Ambient, Ambient and its licensors own all right, title, and interest in and to the Software. All rights not expressly granted to Licensee are reserved by Ambient and its licensors. Subject to payment of all applicable fees and the terms and conditions set forth in this License, Ambient hereby grants to Licensee the following licenses and rights of access and use during the Term:

a.Player(s) Software. Non-exclusive, non-transferable, and limited license to use the Player(s) Software on the Player(s) for the sole purpose of receiving Media Services as contemplated in this License. In addition, if Licensee is supplying its own server or other computer for use in the provision of the Media Services, Ambient hereby grants a non-exclusive, non-transferable, and limited license to Licensee to use the Software provided by Ambient to Licensee that is necessary to deliver the Media Services through Licensee’s wide area network to Player(s).

7. Software Restrictions

Licensee agrees that the following restrictions apply to its use of the Software (whether provided on a standalone or hosted basis)

a.Licensee shall not remove, obscure, or alter any copyright or other proprietary notices contained on or in the Software and shall reproduce all such notices on all copies it makes.

b.Except as expressly provided in this License, Licensee shall not:
(i) sublease, lease, assign, sell, resell, loan, license, re-license, distribute, rent, export, re-export, permit concurrent use of or grant any other rights in or to the Software to a person or entity;
(ii) provide use of the Software as part of Licensee’s provision of a computer service business, third-party outsourcing facility or service, or rental arrangement;
(iii) translate, reverse engineer, create derivative works, decompile, merge, or disassemble any part of the Software, or authorize any third party to do so; and
(iv) use or distribute the Software in any manner that would cause the Software, or any of its components, to become subject to any of the terms of an Excluded License.

8. License to Licensee Content

Licensee hereby grants Ambient a limited, non-transferable, non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Licensee Content as are necessary for Ambient to provide the Services in accordance with this License. For avoidance of doubt, although Ambient may have the right hereunder to host, store, encode, reproduce and/or distribute (among other things) the Licensee Content in order to provide the Services in accordance with this License, the parties expressly agree that Ambient does not hereby take legal title to any Licensee Content.

9. License to Feedback, Suggestions or Recommendations

Licensee hereby grants Ambient a limited, non-transferable, non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Licensee Content as are necessary for Ambient to provide the Services in accordance with this License. For avoidance of doubt, although Ambient may have the right hereunder to host, store, encode, reproduce and/or distribute (among other things) the Licensee Content in order to provide the Services in accordance with this License, the parties expressly agree that Ambient does not hereby take legal title to any Licensee Content.

10. Payment Terms

For the Services, Player(s), and other Ambient equipment provided hereunder, Licensee and the License Payment Person are jointly and severally liable for paying to Ambient the amounts and as otherwise due under this agreement (collectively, “Services Fees”) and for expenses related to shipping Player(s), Services, and any other Ambient equipment to the Licensee Locations. Ambient retains the right to increase Service Fees during the Term as a result of: (a) Inflation in line with Republic of Ireland retail price index, (b) changes in scope of work, including, but not limited to, changes in frequency of update or production requirements, creative scope, and production costs; and (c) Ambient experiencing an increase in third party licensing costs including, but not limited to, master, performance, or publishing rights. Ambient may, at its election and upon notice to Licensee, charge an administrative fee if Licensee requires Ambient to use, in whole or in part, a billing system other than its own to submit invoices or otherwise receive payment for Services Fees. All Service Fee’s shall be:

a.invoiced and payable quarterly in advance at initial subscription commencement, quarterly thereafter;

b.payable for the duration of the Term whether such Services are utilised or not;

c.subject to late payments interest beginning on the date due at the rate of one and one-half (1.5%) percent per month or, if such interest rate violates any applicable laws, the maximum rate permitted by law. Licensee shall pay to Ambient all costs of collection, including without limitation, collection agency and legal fees, incurred by Ambient;

d.paid by credit or debit card (“Service Card”) in respect of which the License Payment Person hereby irrevocably authorises and instruct Ambient to automatically charge all such Services Fee’s and other charges due under this agreement without limitation in financial value or point of reference in time as against the Service Card, which if not kept up to date and valid shall result in immediate suspension of service without further notice (throughout which time all Service Fees are payable in full)

11. Taxes & Performing Rights Licenses

Licensee is solely responsible for payment of any taxes (including sales, use, and property taxes) and performance rights licenses/royalties resulting from the provision of the Services. Licensee shall indemnify, defend, and hold Ambient, its officers, directors, and employees harmless from and against any and all claims and liabilities arising from or related thereto.

12. Warranty for any purchased Player(s)

For the one (1) year period following the first day a Licensee Location receives Media Services from Ambient hereunder (the “Warranty Period”), Ambient warrants to Licensee that the Player(s) located at such Licensee Location will be free from material defects in materials and/or workmanship. During the Warranty Period, Ambient shall maintain and service each Player(s) purchased hereunder at no additional charge to Licensee (including any shipping charges related thereto), provided that such maintenance and service shall not include labour and component repairs required as a direct or indirect result of the improper or out of the ordinary use of the Player(s). Licensee will be responsible for shipping charges after the third attempt of missed call attempts issued by Ambient. During the Warranty Period, defective Player(s) will be either repaired or replaced at Ambient’s sole discretion. Any replacement Player(s), parts or products are warranted for the remainder of the original Warranty Period associated with the replaced or repaired Player(s). If Ambient replaces a Player(s), it will invoice Licensee for the replacement Player(s); however, Licensee may receive credit for such invoice by returning any defective Player(s) within thirty (30) days after receipt of a replacement Player(s). Licensee must promptly notify Ambient if there is a defect in material or workmanship. Ambient must receive notice of all defects before expiration of the Warranty Period. After the Warranty Period for each Player(s) provided hereunder, Licensee shall be responsible for any costs associated with repair (including any component replacement and shipping charges). If Licensee requests that Ambient arrange an on-site installation or service visit related to an Ambient component or to the audio/visual system located on the Location of any Licensee Location, Licensee agrees to pay the cost of any such visit, even if such a visit is merely diagnostic in nature or occurs during the Warranty Period. Warranty for Leased Player(s). Ambient warrants to Licensee that the Player(s) will be free from material defects in materials and/or workmanship and Ambient shall maintain and service each Player(s) rented hereunder at no additional charge to Licensee (including any shipping charges related thereto) during the Term, provided that such maintenance and service shall not include labour and component repairs required as a direct or indirect result of improper or out of the ordinary use of the Player(s). During the Term, defective Player(s) will be either repaired or replaced at Ambient’s sole discretion. Ambient will invoice Licensee for any necessary replacement Player(s); however, Licensee may receive credit for such invoice by returning any defective Player(s) within thirty (30) days after receipt of a replacement Player(s). Licensee will be responsible for shipping charges after the third attempt of missed call tags issued by Ambient. Licensee must promptly notify Ambient if there is a defect in material or workmanship.

13. Service Visits

If Licensee requests a service visit or an on-site installation (either in the initial rollout or subsequently) related to a Ambient component or to the sound system located at the Licensee Location, Licensee agrees to pay the costs (including then-current labour rates) of any visit, even if such a visit is merely diagnostic in nature.

14. Restrictions

a.Media Services. Licensee may use the Service at Locations but shall not transmit or retransmit it so as to be audible or visible outside any such Location (beyond ordinary patio or other outdoor speaker usage, which is permissible), or transmit Content outside any such Location. Licensee shall not, without the prior written consent of Ambient, (i) use Content in conjunction with any advertising or commercial message or entertainment or other public event at a Licensee Location for which Licensee or any other person receives consideration of any kind (including, without limitation, a physical activity event or entertainment at the Location listed herein for any Licensee Location for which an admission fee is charged) or (ii) transmit, retransmit, alter, record or reproduce (or permit the transmission, retransmission, alteration, recording or reproduction of) any Content other than as expressly permitted under this License. Any Ambient Player(s) and/or media containing Content shall not be removed from any Licensee Location without the prior written consent of Ambient.

b.Ambient shall provide to Licensee the Media Services via a software solution in the form of an application and/or via an Ambient Player(s) (Android black box based playback system). Licensee shall be responsible for providing and maintaining a Wi-Fi Internet connection service at each Licensee Location for the purpose of transferring Content and other data to the Player(s) (be that an Ambient Player(s) or Licensee’s own). It shall be Licensee’s obligation to ensure network access and connectivity between the Software and the chosen form of Player(s). In addition, Licensee shall be responsible for ensuring Ambient’s access to the Licensee Locations for the purpose of managing Media Services delivery and Player(s) maintenance. Licensee shall be responsible for all costs associated with connectivity and bandwidth allocation between the Ambient servers and the Licensee Locations and Player(s) and their ability to receive the Ambient.

15. Copyrighted Materials; Third-Party Permissions

Licensee acknowledges that all Ambient Content is copyrighted works and all right, title, and interest in and to said works are the exclusive property of the respective owners thereof. Licensee acknowledges that Ambient owns all right, title and interest in the programming of the song selections (“Channels”) provided through the Service, and that the copyright for such channels belongs exclusively to Ambient. Except as otherwise provided herein, Ambient shall be responsible for obtaining all necessary rights and permissions (and paying any related licensing fees) with respect to any Ambient Content delivered by Ambient in connection with the Services in accordance with the terms of this License. Licensee acknowledges and agrees that, unless otherwise specifically set forth in this License, Licensee shall be solely responsible for obtaining all rights and permissions (and paying any related public performance licensing fees) other than in respect of the Rights Managed Music where such license fees have been paid directly by Ambient.

IMPORTANT NOTICE: the use of Rights Managed Music in isolation should not require any further licenses or the payment of any further rights so long as the Licensee restricts playout of channels to Rights Managed Music only.

16. Indemnification

a.Indemnification by Licensee. Licensee shall indemnify, defend, and hold Ambient and its officers, directors, and employees harmless from and against any and all third party claims, actions, suits, damages, proceedings, costs and expenses (including reasonable attorneys’ fees and costs) incurred or suffered by Ambient and arising out of or relating to any breach or violation by Licensee of Licensee’s representations, warranties, Licenses or covenants contained herein.

b.Indemnification by Ambient. Subject to Section 23, Ambient shall indemnify, defend, and hold Licensee and its officers, directors, and employees harmless from and against any and all third party claims, actions, suits, damages, proceedings, costs and expenses (including reasonable attorneys’ fees and costs) incurred or suffered by Licensee and arising out of or relating to
(i) any material breach by Ambient of Ambient’s representations and warranties, Licenses and covenants contained in this License solely as they relate to Rights Managed Music or
(ii) the Software infringing any Ireland issued patent, registered copyright, or registered trademark. Notwithstanding the foregoing, Ambient shall have no obligation to indemnify Licensee pursuant to this Section 17(b) with respect to any claims or damages arising out of or resulting from
(i) any use of the Services (including, without limitation, the Rights Managed Music) by Licensee or any third party in violation of the terms of this License;
(ii)Licensee’s gross negligence or wilful misconduct;
(iii) any modifications to the Software by any person or entity other than Ambient or Ambient’s authorized representative; (iv) any unauthorized use of the Software by Licensee or any third party;
(v) any use in combination with other software, hardware or data, to the extent any alleged infringement is caused by such combination, or
(vi) any Licensee Content or Third Party Content.

c.Additional Obligations. If the Software is, or in the reasonable opinion of Ambient is likely to become, the subject of any action for infringement of any Ireland issued patent or registered copyright of a third party, or if the Software is adjudicated to infringe any such right, or if the use of the Software is enjoined, then Ambient shall have the option, in its sole discretion, to:
(i) Procure for Licensee, at Ambient’s expense, the right to continue using the Software;
(ii) Replace or modify the Software so that it becomes non-infringing; or
(iii) If none of the foregoing is available to Ambient at a commercially reasonable expense, then Ambient shall (1) be entitled to terminate this License and any licenses granted hereunder and (2) refund to Licensee the fees paid to Ambient in advance for Services not yet provided to Licensee by Ambient.

d.Indemnification Procedures. The party claiming indemnification pursuant to this section (the “Indemnified Party”) shall promptly the other party (the “Indemnifying Party”) of any such claim of which it becomes aware and shall:
(i)at the Indemnifying Party’s expense, provide reasonable cooperation to the Indemnifying Party in connection with the defence or settlement of any such claim,
(ii) at the Indemnified Party’s expense, be entitled to participate in the defence of any such claim, and
(iii) not settle or compromise any claim, action or allegation without the prior written consent of the Indemnifying Party. The Indemnified Party agrees that the Indemnifying Party shall have sole and exclusive control over the defence and settlement of any such third party claim. However, the Indemnifying Party shall not acquiesce to any judgment or enter into any settlement that admits liability on the part of the Indemnified Party without the prior written consent of the Indemnified Party.

e.Sole Remedy. THE PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATION OF AMBIENT AND THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY BREACH OR NEGLIGENCE OF AMBIENT (AND ANY ACTUAL OR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART THEREOF) SHALL BE LIMITED TO THE AMOUNT PAYABLE BY LICENSEE DURING ANY ANNUAL PERIOD.

17. Confidential Information

a.During the Term, each party hereto (“Disclosing Party”) may disclose to the other party (“Receiving Party”) non-public information in connection with the performance of this License including, without limitation, trade secrets, plans for products or services, Licensee or supplier lists, marketing plans, financial documents or data, and designs which it maintains as proprietary or confidential (“Confidential Information”). Both parties shall use the Confidential Information of the other party solely to perform this License, and all Confidential Information shall remain the sole property of the Disclosing Party. The Receiving Party shall hold the Confidential Information in strict confidence and shall not make any disclosure of the Confidential Information (including methods or concepts utilized in the Confidential Information) to anyone during the Term and for a period of five (5) years thereafter without the express written consent of the Disclosing Party, except to employees, consultants or agents to whom disclosure is necessary to the performance of this License and who have executed an License with the Receiving Party which is no less protective of the Disclosing Party’s Confidential Information than this License. Each of the parties shall use the same degree of care as it uses to maintain the confidentiality of its confidential information of a similar nature, which shall in no event be less than reasonable care. Both parties acknowledge that the remedy at law for any breach or threatened breach of the provisions of this section may be inadequate, and that the non-breaching party, in addition to any other remedy available to it, shall be entitled to seek injunctive relief without proof of irreparable injury and without posting bond.

18. Representations and Warranties of the Parties

a.Ambient’s Representations and Warranties Ambient represents and warrants that:
(i) it is a corporation organized and validly existing under the laws of the Republic of Ireland;
(ii) all corporate action necessary for the authorization, execution, delivery and performance of all obligations under this License has been taken and this License, when signed, will constitute a valid and legally binding obligation of Ambient, enforceable in accordance with its terms;
(iii) it has used commercially reasonable efforts to determine that the Software does not, at the time of delivery to Licensee (or initial access by Licensee), contain any viruses, worms, time bombs, Trojan horses and other harmful or malicious code;
(iv) it has obtained and shall continue to hold and comply with all necessary rights and all required authorizations to use and display the Ambient Content, including all consents, clearances and licenses required from the copyright holders;
(v) neither the Ambient Content nor any part thereof will infringe any intellectual property right, performing right, right of privacy, or other proprietary right or interest of any third party nor will it constitute a misuse of any confidential information of a third party or breach any law or be defamatory, obscene or otherwise unlawful within the applicable territory; and
(vi)Ambient shall comply with all material federal, state and local laws and regulations pertaining its obligations under this License.

b.Licensee’s Representations and Warranties. Licensee represents and warrants that:
(i) it is an entity organized and validly existing under the laws of the state of its organization;
(ii) all action necessary for the authorization, execution, delivery and performance of all obligations under this License has been taken and this License, when signed, will constitute a valid and legally binding obligation of Licensee, enforceable in accordance with its terms;
(iii) it has obtained and shall continue to hold and comply with all necessary rights and all required authorizations to use and display the Licensee Content including all consents, clearances and licenses required from the copyright holders;
(iv) neither the Licensee Content nor any part thereof will infringe any intellectual property right, performing right, right of privacy, or other proprietary right or interest of any third party nor will it constitute a misuse of any confidential information of a third party or breach any law or be defamatory, obscene or otherwise unlawful within the applicable territory;
(v) all Content (excluding Ambient Content not modified or combined with other Content by Licensee) and its use, as enabled by Licensee, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights; and
(vi) Licensee shall comply with all material federal, state and local laws and regulations pertaining its obligations under this License.

19. Notices

All notices, reports, requests, demands and other communications under or in connection with this License or any other Licenses entered into between the parties in connection with this License shall be sent by (a) a recognized overnight courier service, (b) registered or certified mail, postage prepaid, return receipt requested, or (b) facsimile or email, in each case addressed as set forth below or such other address as a party shall designate in writing. All notices, reports, requests, demands and other communications shall be deemed to have been given on the date of receipt indicated on the return receipt in case of courier or mail or on the date of receipt as indicated by confirmation sent from the receiving machine to the sending machine in case of facsimile or upon confirmed receipt in the case of email.

20. Waiver; Severability

The failure of either of party to enforce any provision of this License or to exercise any right or remedy hereunder shall not be considered to be a waiver of any such right or remedy or of any subsequent breach of this License. No provision of this License may be waived except by written License of each party. If any provision of this License violates any law or becomes unenforceable, then such provision shall be deemed modified or excluded to the extent necessary so that it is no longer in violation of law or unenforceable. The remaining provisions of this License shall remain binding on the parties.

21. Disclaimer of Warranties

THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS LICENSE ARE THE ONLY WARRANTIES MADE BY AMBIENT. AMBIENT EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT AMBIENT HAS NOT MADE, AND LICENSEE IS NOT RELYING ON, ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS TO LICENSEE REGARDING THE VALUE OF THIS LICENSE OR THE SERVICES AND PRODUCTS TO LICENSEE OR LICENSEE’S ABILITY TO USE SUCH SERVICES OR PRODUCTS PROVIDED HEREUNDER TO ITS ADVANTAGE, PROFITABILITY OR BENEFIT. DUE TO THE COMPLEX NATURE OF SOFTWARE IN GENERAL, AMBIENT DOES NOT WARRANT THAT THE SOFTWARE OR THE DOCUMENTATION IS COMPLETELY ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, OR WILL OTHERWISE MEET LICENSEE’S NEEDS. WITHOUT LIMITING THE FOREGOING, AMBIENT EXPRESSLY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE LICENSEE CONTENT OR THIRD PARTY CONTENT WHETHER PROCURED BY AMBIENT, LICENSEE, OR OTHERWISE.

22. Limitation of Liability

IN NO EVENT SHALL AMBIENT (OR AMBIENT’S SUPPLIERS OR LICENSORS) BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS AND WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS LICENSE INCLUDING THE PROVISION, USE OR INABILITY TO USE THE SERVICES, PLAYER(S) OR OTHER EQUIPMENT, EVEN IF AMBIENT 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 AMBIENT’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR RELATED TO THIS LICENSE EXCEED THE AMOUNT OF FEES PAID BY LICENSEE TO AMBIENT DURING THE TWELVE MONTH PERIOD PRIOR TO THE CLAIM.

23. Default; Remedy

If either party materially breaches this License for any reason then the non-breaching party shall notify the breaching party of such breach in writing. The breaching party will have thirty (30) days from receipt of such notice to remedy the breach. If, after the thirty (30) day remedy period, the breach has not been cured, the non-breaching party, in its sole discretion and in addition to its other remedies, may terminate this License. If Licensee is the breaching party, Ambient may withhold Services in whole or in part upon the occurrence of the breach. The breaching party shall reimburse the non- breaching party for all out-of-pocket costs and expenses incurred in connection with non-breaching parties exercise of its rights under this License, including without limitation, its costs of collection and reasonable attorneys’ fees and costs. Licensee acknowledges and agrees that if at any time Licensee is late in the payment of any amount due to Ambient, (a) Ambient may withhold Services and Content (including updates) to the Licensee until such time as Licensee pays all amounts due and owing to Ambient, (b) the full and regular fees associated with the Services shall continue to accrue notwithstanding the fact that the Services and Content are being withheld, and (c) Ambient will not be obligated to provide retroactive Services or Content updates once Licensee pays the balance of payments due and owing to Ambient.

24. Termination

Upon termination or expiration of this License the following shall occur:

a.Each party shall immediately cease all use the other party’s Confidential Information, and shall, at the option of the Disclosing Party, delete and/or return all such items to the Disclosing Party.

b.All licenses hereunder shall terminate, and Licensee shall terminate use of, and, if applicable, return to Ambient (within 30 days of the effective date of termination) all of the Ambient Content, Player(s), Software, and other media, documents and equipment of Ambient or its vendors that are in Licensee’s possession or control.

c.An officer of each party with the express authority to make such representation shall certify in writing to the other party that it has performed the obligations set forth in Sections 25(a) and (b)

d.Licensee shall pay all obligations to Ambient that have accrued prior to the effective date of the termination.

e.Ambient shall not be responsible for any license fees or royalties (including performance royalties where applicable) related to the playback of Content at Licensee Locations, websites, or otherwise.

25. Force Majeure

Except for payments due from Licensee to Ambient hereunder, neither party shall be liable for delays in performance due to causes beyond its reasonable control, including but not limited to, acts of God, acts of public enemy, acts of government or courts of law or equity, civil war, insurrection or riots, fires, floods, explosions, earthquakes or other casualties, strikes or other labour troubles. A party so delayed shall promptly inform the other party in writing of such event and of the date by which its performance may be reasonably be expected to resume.

26. Entire License and Amendment

This License constitutes the entire License between the parties with regard to the subject matter hereof. This License supersedes all other Licenses, representations or understandings (whether oral or written and whether express or implied) relating to the subject matter hereof. No amendment or modification of this License shall be binding unless in writing and duly executed by both parties.

27. Governing Law and Jurisdiction

Any dispute arising out of or related to this License will be subject to the exclusive jurisdiction and venue of the of courts of Dublin, Ireland and this License shall be governed by the laws of the Republic of Ireland, excluding any choice of law rules.

28. General Terms

Licensee shall not assign or transfer (by operation of law or otherwise) any of its rights hereunder without the prior written consent of Ambient. Any transfer of all or substantially all of the assets of Licensee, or any voluntary or involuntary transfer of a controlling interest in Licensee (including through a stock sale, merger, reorganization or other recapitalization event) shall be considered an assignment under this License. This License is fully assignable by Ambient without notice to, or consent of, Licensee. The parties shall perform all such further acts, provide such further documents or written assurances, and execute such further documents as are reasonably required or necessary to carry out the acts and transactions contemplated by this License. The parties are independent contractors. Neither party shall describe itself as the agent of the other. Neither party has authority to assume nor to create any obligation or liability, express or implied, on behalf of or in the name of the other. The parties acknowledge and agree that either party may, at any time, publicize the fact that the parties have entered into this License by including on its website and in publications only the other party's name, address, URL and a brief description of its business. Any additional disclosure of the terms of this License or the relationship of the parties shall require both parties' prior written approval. This License may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed License (in counterparts or otherwise) by fax or by other means of electronic imaging and transmission shall be sufficient to bind the parties to the terms and conditions of this License.

29. Survival

All provisions of this License which may reasonably be interpreted or construed as surviving the expiration or termination of this License shall survive the expiration or termination of this License.