THIS SOFTWARE AS A SERVICE LICENSE AGREEMENT (“License Agreement”) is entered into by and between Earnlink Network, LLC d/b/a Earnware a Delaware limited liability Company, located at 5580 La Jolla Blvd #332 La Jolla, CA 92037 (“Licensor”) and the person or entity registered herewith on and through Licensor’s Website (“Licensee”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged. In the event that Licensor is required to digitally sign or agree to additional terms during the provision of Services on behalf of Licensee, both Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered. Therefore, any terms which appear on any website or platform not owned and operated by Licensor shall be disregarded and deemed ineffective, being superseded by this Agreement as signed by both Parties. All pricing terms shall be set forth in an insertion order (“IO”) which shall incorporate this License Agreement therein without further reference.
WHEREAS, Licensor has developed, owns or has the right to certain proprietary software (“Software”) access of which is provided through Licensor’s servers (“Platform”) which allows a Licensee to capture and manage consumer data, vendor data, statistics segmentation, distribution of campaigns, track and store information related to Licensee’s commercial marketing. Collectively Software and Platform shall be referred herein as “Services”; and
WHEREAS, Licensee desires to utilize such Services in conjunction with its business for the purpose of data collection, analytics, third-party sourced placement, third-party ESP services, tracking responses thereon, creation of performance matrix data and analysis related to its commercial marketing offers; and
WHEREAS, Licensee and Licensor believe it is in their mutual interest and desire to enter into an agreement whereby Licensee would use Licensor’s Platform and Services in furtherance of Licensee’s business upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above and the mutual promises, agreements and conditions stated herein, the Parties agree as follows:
NOW, THEREFORE, in consideration of the premises set forth above and the mutual promises, agreements and conditions stated herein, the Parties agree as follows:
- PLATFORM AND SOFTWARE LICENSE.
1.1 Licensor hereby grants to Licensee, for the term of this Agreement, a non-exclusive, non-assignable, non-transferable, revocable limited license to access and use the Software provided on the Platform for the sole purpose of managing and operating its commercial marketing systems. Licensor reserves the right, in its sole discretion, to provide or not provide written documentation, associated materials and/or updates to the Service. In the event Licensor provides any such materials and/or updates, it will provide reasonable notice to Licensee.
1.2 Notwithstanding the right to use the Software within the Platform, Licensee gains no other rights, title or interest in the Software or the Platform. Licensor retains all right title and interest in the Software and Platform throughout the world including any and all portions or copies thereof, trademarks, patents, trade names, copyrights and trade secrets including, without limitation, all related technical know-how and forward developments. The license granted herein shall not constitute a sale of the Software or intellectual proprietary rights derived therefrom.
1.3 All derivative products, works, improvements, ideas, suggestions or suggestions made by Licensee with respect to the Software or Platform, its improvements or modifications are and shall at all times be owned by Licensor with all attendant right, title and interest therein. In the event Licensee makes a suggestion, recommendation or improvement to the Software, Licensee shall assign and cause any third-party associated with any such suggestion, recommendations or improvement to the Software to assign to Licensor all right, title and interest that such Licensee or its associate may have in and to any derivative products, works, suggestions, ideas, improvements or modifications to the Software resulting therefrom.
1.4 Licensor retains the right to utilize certain data mining tools within its Software from time to time (“Data Miner(s)”). Any data derived by Licensor and through its Data Miner, shall be the sole property of Licensor. Data Mining shall include tracking the use of Licensor Software, affiliate usage of Software, campaign conversions and clicks, device usage as well as aggregate data. Licensor may, from time to time, opt to share data derived from Data Miners for compliance activities or to otherwise improve the quality, functionality, and services of Licensor. If Licensor, in its sole discretion, opts to share data derived from Data Miners with Licensee, Licensee agrees that this data will be used solely by Licensee for the purposes for which it is provided to Licensee and will not be shared by Licensee with any other third-party or entity without the prior written approval of Licensor. Such Data Mining shall not include Licensee information, affiliate information or advertiser information, nor any trademark or copyrighted material.
1.5 All rights not expressly given to Licensee by virtue of this Agreement, shall be reserved to Licensor. Licensee and anyone accessing the Platform or Software or deriving a benefit from the Platform or Software by virtue of this License shall agree not to: (a) directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying algorithms of the software; (b) copy, modify, translate or creative derivative works based on the Software; (c) lease, sell, sub-license, distribute, assign or otherwise transfer Licensee’s rights under this Agreement including the right to access and use the Software to any third-party; or (d) remove any proprietary notice, label, trademark or copyrighted material on or within the Software.
1.6 All Licensee collected derived data, including consumer information, through the use of Software, (“Licensee Database”) shall be owned by Licensee to manage, make use and have access to the same pursuant to the terms and conditions set forth in this Agreement. Licensor shall not be responsible or liable for collection or use of Licensee Database. Licensee shall be solely responsible for creating, maintaining copies of the Licensee Database and related information.
1.7 Licensee is prohibited from making any copies, archival or otherwise of the Software and is prohibited from using the Software in any manner other than as described herein. This License is expressly limited to Licensee. In the event that, Licensee allows a third-party to access or use the Platform or Software, such license shall be terminated without further notice. In the event of termination for any reason, Licensee shall remit to Licensor all fees and costs associated with the Platform and Service within five (5) business days of such termination. Licensee may obtain written permission from Licensor to allow third-party access upon reasonable notice and written authorization from Licensor. Licensee shall provide a list of authorized agents to access the Platform, Software and Database and shall keep Licensor informed of any change in the authorized agent(s). Licensor shall rely on such list and deny access to any agent not identified. The List shall be final and binding upon the Licensee. In the event Licensee fails to notify Licensor of any changes to the authorized agent(s), Licensor shall not be held responsible or liable in any manner for any person being granted or denied access to the Database based upon an erroneous or incomplete list.
1.8 Licensee grants to Licensor for the term of this Agreement, a non-exclusive, non-transferable license to use, reproduce, publicly and digitally display Licensee’s name, trademarks, trade names, service marks, logos, URLs to advertise and promote the Licensor and its Software. Licensor agrees that nothing in this Agreement shall give any right, title, or interest in or to Licensee’s Trademarks other than the right to use such trademarks in the manner set forth in this Agreement. Nothing in this Agreement gives Licensee any right to use Licensor’s trademarks and other intellectual property without the prior written approval of Licensor.
1.9 Licensee grants to Licensor the right to assist with the management of subscriber data including but not limited to opt-out, suppression and activity-based segmentation to maximize engagement and delivery. This right includes the right to add global suppression across all Earnware accounts without notification to Licensee; the right to suppression account by account across specific Earnware accounts without notice to Licensee; global or account by account either requested by Licensee to modify the segment of users Licensee is sending to or make such modifications on behalf of Licensee without express notice to Licensee.
- TERM AND TERMINATION.
2.1 The Initial Term (“Initial Term”) of this Agreement shall commence on the Effective Date and shall expire twelve (12) months thereafter. This Agreement shall automatically renew for additional twelve (12) month periods after the Initial Term (each an “Extended Term”) unless terminated earlier pursuant to the terms and conditions of this Agreement. The Initial Term and any Extended Term shall constitute the entire term of this Agreement (collectively “Term”).
2.2 The Agreement may be terminated at any time with thirty (30) days prior written notice (email notice shall be acceptable) by either Party with or without cause. Notwithstanding any other provision to the contrary, Licensor may suspend or terminate this Agreement with or without notice if Licensor has a reasonable basis that suspension or termination is necessary to prevent a violation of Federal or State law, prevent damage to Licensor’s reputation, or breach of Section 4 below.
2.3 Upon termination of this Agreement, whether for breach or otherwise, the following shall occur: (a) Licensee shall cease using the Service and Licensor shall terminate access to the Platform; (b) Licensor shall secure for transfer Licensee’s Database as presented in the Platform, Licensee Database will be held for transfer for a period of ten (10) days and then destroyed unless otherwise agreed in writing by Licensor; (c) Licensor reserves the right to present and transfer Licensee Database in a format as preserved by Licensor; (d) Licensee shall pay Licensor all sums due and owing, if any, within five (5) business days of the effective date of termination. Notwithstanding Licensee’s ownership of its Database, Licensor shall have the right to retain a full and complete copy of Licensee’s Database subject to the confidentiality provisions of this Agreement for the purpose of proving compliance with all applicable laws, rules and regulations. Nothing herein shall impose any transfer of ownership or further use of Licensor’s data mining database which is expressly owned by and reserved for use by Licensor.
- PAYMENT TERMS.
3.1 License Fee. Licensee shall pay the fees as set forth in the accompanying and future IO within fifteen (15) days of receipt of Licensor’s invoice which shall be delivered on the first day of each month. Payments not received when due shall be subject to a late charge of one and a half percent (1.5%) per month until paid or the maximum rate allowed by applicable law. All payments shall be made in USD and shall be paid by wire transfer, ACH, credit card or check.
3.2 Default. In the event Licensee fails to timely pay any sum due and owing pursuant to the terms of this Agreement, such Licensee shall be in default and breach of this Agreement. Licensor at its sole discretion may suspend services immediately upon written notice to Licensee refer Licensee’s account to a collection agency or attorney for collection. Licensee expressly waives any requirement under any applicable law to receive any notice of default. Once a Licensee’s account is in default, Licensee shall pay to Licensor in addition to the license fee due and owing all costs of collection, including but not limited to reasonable attorney fees, costs of collection and court costs.
3.3 Taxes. Licensee shall pay all taxes (excluding Licensor’s income taxes) fees and assessments imposed by any governmental authority with respect to the license granted hereunder by Licensor and Licensee’s use of the Software.
- ACCEPTABLE USE POLICY.
4.1 Compliance with Applicable Laws. Licensee represents and warrants that it and its vendors, advertisers and publishers shall comply with all applicable State and Federal laws (including without limitation the CAN-SPAM Act of 2003, effective January 1, 2004 and all revisions thereto (“CAN-SPAM Act”); the Telephone Consumer Protection Act of 1991 and all revisions thereto (“TCPA”), and all rules and regulations relating to same; and all state consumer protection laws in any state where Licensee conducts business, including the California Consumer Protection Act of 2018 (“CCPA”) (collectively “Applicable Laws”) as well as Licensor’s Acceptable Use Policy (“AUP”) as updated from time to time at all times during the Term. Licensee shall be solely responsible for breach of any Applicable Laws or this AUP by its clients, advertisers, vendors and/or publishers. Licensor reserves the right, in its sole discretion, to suspend or terminate Services without liability or suspend provision of the Software Service temporarily as well as pursue all legal and equitable remedies available to it the full extent permitted by law and subject to the terms of this Agreement in the event that Licensee or its publishers directly or indirectly violate the Acceptable Use Policy.
4.2 Licensee and Licensee’s advertisers, vendors and publishers shall not: (a) interfere with or disrupt the Service or networks connected to the Software Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (b) violate any applicable local, state, national or international laws or regulations; (c) send unsolicited or unauthorized advertising (“Spam”), or forced opt-in offers and if Licensee or Licensee’s publisher is listed on block lists, Licensee shall remove it, its vendor or publisher from the Software Service within two (2) weeks from the date that written notice is provided to Licensee by Licensor, or Licensor reserves the right to terminate this Agreement immediately, without liability to Licensor; or (d) stalk or otherwise harass another person.
4.3 Licensee and Licensee’s publishers shall not upload, post, email, transmit or otherwise make available any content through the Software Service that: (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, gambling, invasive of another’s privacy, hateful, or racially, politically, ethnically or otherwise objectionable; (b) harms minors in any way; (c) infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party; (d) includes Licensor’s service marks or URL address; (e) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (f) must not directly or indirectly promote pornography or any other adult related products, sites, materials, or any other otherwise objectionable content.
4.4 Licensor reserves all rights to respond to violations of this Section 4 to the full extent of Applicable Laws. Licensee and Licensee’s publishers acknowledge and authorize Licensor to monitor its communications on the Software Service to ensure compliance with this Section 4.
- MANAGEMENT SERVICES.
5.1 In the event Licensee retains Licensor to provide Management Services through Licensor’s network of electronic and web properties, including third-party ISP, ESP CRM, content or campaign provision, APIs and add-ons, web-based content services used for digital marketing (collectively “Management Services”). Such Management Services include any updates, enhancements, new features, and/or the addition of any new Web properties all subject to the terms of this Agreement.
5.2 Where Management Services involve the retention of third parties, such third-party retentions shall be between Licensee and such third-party and may require Licensee execute terms presented by a third- party. Licensor shall not be responsible or liable for actions or inactions of such third-party including third-party breach of its agreement with Licensee. Licensor may facilitate payment between Licensee and such third-party but shall not be liable for any such payment. It is agreed between the parties that the sole obligation of Licensor in provision of Management Services is solely to ensure Platform and third-party web-based product or services are properly configured.
5.3 Fees for Management Services are configured at the time such services are requested and provided and are in addition to Fees for Services.
- TECHNICAL SUPPORT.
6.1 Licensor provides incident-based technical support to assist in load, access or resolve issues resulting from the normal use of the Service by Licensee. Licensor will also supply to Licensee technical support via email as it pertains to the normal use of the Service. Licensor does not provide technical support to any third-party associated with Licensee including, but not limited to publishers, advertisers, vendors, or affiliates.
- DERIVED DATA OWNERSHIP, AGGREGATION AND DATA STORAGE.
7.1 “Licensee Data” consists of information which is captured by the Software and or placed on Licensor’s Platform by Licensee or its advertisers, vendors, publishers and the like as well as all applications sorting and deriving functional statistical information from such Licensee Data. Licensee will own all Licensee Data. Licensee is responsible for making and keeping current copies of all Licensee Data and related information. Licensor shall not disclose Licensee Data to any third-party unless: (a) directed by Licensee; (b) in response to a court order, subpoena or other legal process, and provided that Licensor has given Licensee reasonable notice of such court order, subpoena or other legal process; or (c) is in aggregate non-personally identifiable form. Nothing herein shall impose any transfer of ownership or further use of Licensor’s data mining database which is expressly owned by and reserved for use by Licensor.
7.2 “Licensor Data” consists of any information, including but not limited to data mining database, tracking data, tracking methodologies, other than Licensee Data, generated by the Software, regardless of whether or not the information, tracking data or tracking methodology was generated as a result of Licensee’s use of the Software. All data and information that is not owned by Licensee is owned by Licensor, with all right, title and interest therein, and shall be considered Licensor Data hereunder.
- LICENSEE RESTRICTED USE. Licensee shall use the Service in compliance with the following:
8.1 Licensee may not transfer, assign, sublicense, or otherwise provide any third-party access to the Software Service.
8.2 Licensee shall not: (a) modify, translate or create derivative works based on the Software, or permit others to do so, including in order to compete directly or indirectly with the Licensor; (b) rent, lease, transfer, or otherwise transfer rights to the Software; (c) reverse engineer or disassemble the Software; or (d) provide access to third-parties, including to use of a single account for multiple business entities, unless specifically authorized by Licensor.
8.3 Licensee shall not, directly or indirectly, in connection with their business practices or activities, or on or in connection with any websites controlled or operated thereby, or on or in connection with any websites in which they utilize the Software: (a) participate in, undertake, encourage or display any political hate-mongering, racial, ethnic, fraudulent, misleading or otherwise objectionable content or false advertising; (b) participate in, undertake, encourage or display any hacking or software pirating; (c) participate in, undertake, encourage or display any activity in violation of any applicable state, federal or international laws, rules or regulations; (d) participate in, undertake, encourage or display any activity that violates any applicable federal, foreign, state or local laws, rules or regulations including but not limited to the federal CAN-SPAM Act of 2003 or other applicable state or international SPAM laws, as amended from time to time.
8.4 In the event Licensor, in its sole discretion finds any advertising, lead generation or website content or marketing materials to not meet the letter or spirit of the standards set forth in this Agreement, Licensor may request that Licensee make changes to bring such content and materials into compliance. If Licensee fails to make the necessary changes immediately upon request, Licensor is authorized to remove the content and/or materials, suspend any applicable campaign, or terminate this Agreement immediately, without liability to Licensee. Licensor retains the right to audit from time to time the content and material that are promoting, distributing and/or displaying on or through the Software or in connection with the use thereof.
8.5 If Licensee’s Internet Protocol (“IP”) or domain is ‘blacklisted’ for SPAM and a resolution cannot be found by the Parties, Licensor may require that Licensee immediately suspend and permanently remove the applicable advertising campaign, links, and/or websites (including landing pages) upon notice to Licensee. In the event Licensee fails or refuses to remove the applicable advertising campaign, links, and/or websites (including landing pages) upon notice, Licensor reserves the right to independently suspend Licensee’s domain or IP, such campaign, links and/or websites and will suspend Licensee’s access to the Software or take additional actions it deems necessary or appropriate to terminate this Agreement and Licensee’s use of the Software immediately upon written notice, without liability and in all events, in Licensor’s sole discretion.
- CONFIDENTIALITY AND NON-DISCLOSURE.
9.1 As used in this Agreement, the term “Confidential Information” includes, without limitation, any data or information that: (a) is labeled as proprietary or confidential; (b) is identified at the time of its disclosure as confidential; (c) a reasonably prudent person would recognize would not be made available to third-parties without restriction or payment; (d) is competitively sensitive material, and not generally known to the public. Confidential Information shall further include, without limitation, this Agreement, the Software Service and/or the configuration thereof. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the recipient party from a third-party without obligation of confidentiality; (iii) was or is already known by or in the possession of the recipient party and not in violation of any obligation of confidentiality; or (iv) is required to be disclosed by under applicable law or by a governmental order, decree, regulation or rule provided that the recipient party gives written notice to the disclosing party as far in advance as possible prior to disclosure.
9.2 During the Term of this Agreement and for three (3) years thereafter, each Party receiving Confidential Information (“Receiving Party”) of the other Party (“Disclosing Party”) shall: (a) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized person on its behalf (including, in the case of Licensee, any breach by a User or business associate); (b) not use the Confidential Information except in connection with its use of the Software as expressly permitted in this Agreement; (c) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third-party (except as authorized herein and other than to such party’s employees who have a need to know such Confidential Information, and have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith); and (d) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care. Furthermore, each Party shall use commercially reasonable efforts to procure from each of its employees and from all independent contractors written undertakings that: (i) they will not use, disclose or otherwise make available or allow to be used, disclosed or made available, the Confidential Information of the Disclosing Party, by or to any third-party (except as authorized herein); and (ii) they will maintain the confidentiality of such Confidential Information.
9.3 The Receiving Party acknowledges that the Disclosing Party shall incur irreparable damage if the Receiving Party should breach any of the provisions of this Section. Accordingly, if a Receiving Party or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section by the Receiving Party, without having to prove damages or post a bond.
- REPRESENTATIONS AND WARRANTIES.
10.1 Each party represents and warrants that it has the sufficient authority to enter into this agreement. Licensee represents and warrants that it has and will continue during the Term to provide to Licensor true, accurate, current and complete information. To the best of Licensor’s knowledge, Licensee’s use of the Software in accordance with this Agreement and the applicable specifications delivered in writing by Licensor does not and shall not infringe upon any patent, trademark, copyright, trade secret or other intellectual property, or proprietary right of any third-party, and there is currently no actual or, to the best of Licensor’s knowledge, threatened, suit, against Licensor by any third-party alleging such infringement. Notwithstanding anything to the contrary contained herein, the Licensor makes no representation or warranty with respect to infringement based on or arising out of, in whole or in part: (a) any modification to the Software by Licensee; or (b) any combination or the Software with another item of software, other intellectual property, website, or functionality; or (c) utilization of the Software by Licensee other than in accordance with this Agreement and the applicable specifications delivered in writing by Licensor to Licensee.
- DISCLAIMER OF WARRANTIES.
11.1 EXCEPT AS PROVIDED IN SECTION 10.1 OF THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE APPLICATION OR THE OPERATION OR USE THEREOF. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE APPLICATION WILL MEET ALL OF LICENSEE’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE.
- LIMITATION OF LIABILITY AND DAMAGES.
12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY LICENSEE AS FEES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE ALLEGED DAMAGES.
- INDEMNIFICATION.
13.1 Indemnification by Licensee. Licensee and its successors and assigns shall indemnify, defend, and hold harmless Licensor, and its members, directors, officers, employees and agents, and its and their successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that Licensor may incur or suffer as a result of a third-party claim or demand, which arise, result from, or relate to: (a) a breach of this Agreement; or (b) a breach of this Agreement by an agent, Licensee, vendors or other related party of Licensee; or (c) any breach of a third-party agreement provided by Management Services; or (d) Licensee’s services or products; or (e) any Licensee related user’s business practices and/or marketing practices; or (f) the use of the Software not in accordance with this Agreement.
13.2 Indemnification by Licensor. Licensor and its successors and assigns shall indemnify, defend, and hold harmless Licensee, and its shareholders, directors, officers, employees and agents, and its and their successors and assigns from and against any and all third-party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer as a result of a third-party claim or demand, which arise, result from, or relate to: (a) a breach of any of its representations and warranties set forth in this Agreement; or (b) any claim of infringement solely related to the Software. Notwithstanding the foregoing, Licensor shall have no liability or indemnity obligation for any such claim arising from: (i) the use of the Software in combination with non-approved third-party products, including hardware and software; (ii) modifications or maintenance of the Software by a party other than Licensor; or (iii) or the use of the Software in any manner not authorized herein or in violation of this Agreement.
13.3 The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party’s prior written approval. The indemnifying party will pay any and all costs, damages and reasonable attorney fees and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any such claim, suit or proceeding.
13.4 Notwithstanding anything contained herein to the contrary, neither Party shall be liable or required to indemnify the other party for such other Party’s gross negligence or willful misconduct.
- INTELLECTUAL PROPERTY CLAIM REMEDIES.
14.1 If the Software or any portion thereof becomes, or in Licensor’s sole judgment is likely to become, the subject of any claim or action that it violates the intellectual property or other rights of another person, then Licensor may, at its sole option either: (a) procure the right to continue using the Software; (b) modify the Software to render it non-infringing; or (c) replace the Software or any portion thereof with non-infringing technology. If none of the foregoing is commercially practicable, Licensor may terminate this Agreement without liability upon written notice. The remedy set forth in this Section 14 constitutes Licensor’s total liability to Licensee for intellectual property infringement by the Software.
- COMPLIANCE WITH APPLICABLE LAWS, RULES AND REGULATIONS.
15.1 Licensee shall comply with all applicable Federal, State, county and local laws, ordinances, regulations, and codes and will procure all required permits, approvals, inspections and certificates in order to operate its business in compliance with all applicable laws.
- NON-SOLICITATION.
- 16.1 During the term of this Agreement and for a period of two (2) years after termination of this Agreement, Licensee shall not solicit, seek to employ or hire Licensor employees, the identities of which may be disclosed to Licensee during the term of the Agreement. In addition to Licensor’s rights and remedies under this Agreement or at law, Licensee agrees that monetary damages for a breach of or a threatened breach of this Section 16 will not be adequate and that Licensor shall be entitled to seek injunctive relief (including temporary and preliminary relief) without the need or requirement for the filing of a bond or other undertaking. In addition to any other remedies available to Licensor, if Licensor shall employ a Licensor employee in violation of this Agreement then Licensor shall be entitled to liquidated damages of two (2) times the employee’s current salary.
- NON-COMPETE.
17.1 During the Term of this Agreement and for two (2) years after the last date of Licensee’s use of the Software or any service made available by Licensor, Licensee will not create, develop, sell, offer or distribute a competing software or related service. A “Competing Software” is defined for the purpose of this Agreement as software as a service that provides data distribution software systems with analytics for tracking publisher, affiliate and/or advertiser activity and response to marketing ads. Licensee agrees that violation of this Section 17 will be grounds for immediate termination of the Agreement without liability on the part of Licensor in addition to all other equitable relief to stop the violation and competing activity as well as any other monetary relief permitted under the law all of which shall be cumulative.
- DISPUTE RESOLUTION.
18.1 If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the State of California, San Diego County. Any costs and fees other than the Party’s respective attorneys’ fees associated with the mediation shall be shared equally by the Parties. If the Parties are unable to arrive at a mutually agreeable resolution through mediation, the Parties agree to submit the dispute to binding arbitration before the American Arbitration Association under the commercial rules in the State of California, San Diego County. The Parties agree that the binding arbitration will be conducted by a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding anything to the contrary contained herein, if Licensee does not pay all Fees due under this Agreement, the Parties agree that Licensor may elect to resolve any nonpayment dispute by submission to a court located in the State of California, San Diego County. If any litigation or arbitration is necessary to enforce this Agreement or the terms thereof excepting therefrom payment obligations of Licensee, the prevailing Party shall be entitled to an award of reasonable attorneys’ fees, costs and expenses. This Agreement will be governed by the laws of the State of California.
- GENERAL PROVISIONS.
19.1 Independent Contractors. Each Party hereto is an independent contractor of the other party and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between the Parties, and neither Party shall be authorized to bind the other in any way. This Agreement is between the Parties and is not for the benefit of any third-party, directly or indirectly including, if applicable, any User accessing the Software by means of an account established by Licensee.
19.2 Non-Assignment. Neither this Agreement nor the License granted hereunder nor any rights or obligations set forth herein may be assigned, delegated, subcontracted or otherwise transferred, by Licensee to any third-party, whether by operation of law or otherwise, without the express prior written consent of Licensor; provided, however, that, this Section 19.2 shall not be construed to require the consent of the other party with respect to the assignment or transfer (by law or otherwise) of the license granted hereunder or any rights or obligations set forth herein in connection with the non-consenting party’s sale of all or substantially all of its assets or the sale or issuance of more than fifty (50%) percent of the non-consenting party’s voting equity.
19.3 No Waiver. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Except as provided herein, no remedy set forth in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement, and any approval or consent hereunder must be in writing and signed by the Party against whom enforcement is sought or the Party providing such approval or consent.
19.4 Force Majeure. No delay or failure of a party to perform any of its obligations under the Agreement shall be considered a breach of this Agreement to the extent it results from any cause beyond its control including any act of God, pandemic, earthquake, hurricane, flood, fire, natural catastrophe, severe weather, public emergency, accident, labor difficulty, strike, lock-out or other dispute, riot, civil commotion, insurrection, equipment or system failure or changes in any federal, state, or local laws, statutes, rules, regulations, or ordinances or other action of any governmental authority having jurisdiction (each a “Force Majeure Event”).
19.5 Invalidity of Provision. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to the prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and in the event the remaining provisions of this Agreement shall remain in full force and effect and shall be fully binding upon the Parties.
19.6 Headings. The headings set forth in this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.
19.7 Notices. All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and addressed to the Legal Department of the respective party at the addresses set forth in the introductory paragraph to this agreement (or such other address as the parties may designate by written notice in the manner aforesaid), and shall be deemed to be given when delivered in person or when sent by facsimile (with receipt confirmed), or on the first business day after posting thereof with a nationally recognized overnight courier, or when received if sent by any other means.
19.8 Amendment. No amendments to this Agreement shall be effective unless made in writing and signed by the Parties.
19.9 Entire Agreement. This Agreement and any exhibits, or schedules referred to in this Agreement represent the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications or other understanding related to the subject matter of this Agreement. Except as otherwise provided in this Agreement, all modifications or amendments to this Agreement must be in writing signed by both Parties.
19.10 ELECTRONIC SIGNATURES. Licensee acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Licensor to accept the terms and conditions of this Agreement, Licensee is submitting a legally binding electronic signature and is entering into a legally binding contract. Licensee acknowledges that its electronic submissions constitute its Agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, LICENSEE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY MEDIA COMPANY. Further, Licensee hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.