PopularMedia Service Order Standard Terms And Conditions
All capitalized terms used herein shall have their respective meanings as defined in the Service Order, unless otherwise expressly defined herein. The Service Order plus the terms and conditions set forth below shall be this "Agreement."
1. Software and Services
PopularMedia ("PM") shall provide Company with a nonexclusive, nontransferable license to use its proprietary software (including all modifications, enhancements, and derivative works, the "Software") and shall provide those services set forth in the Service Order (including all modifications, enhancements, and derivative works, the "Services") to Company, subject to the terms and conditions set forth in this Agreement.
2. Payment Terms
Company shall pay to PM all Fees set forth in the Service Order without any right of set-off. Company shall reimburse PM for its travel and living expenses (that Company has approved in advance and in writing) in connection with PM's provision of Program Integration, on-site training, and other consulting services. Company shall make all payments within thirty (30) days after the date of invoice. Company is responsible for and agrees to pay any applicable sales, use, value-added, withholding, or other taxes or duties, tariffs, or the like that apply to the provision of the Services and Software (except for PM's income and employment, which PM will pay). Any payments that remain unpaid for thirty (30) days shall bear a late payment charge (until paid) at the rate of: (a) one and one-half percent (1.5%) per month; or (b) if lesser, the maximum amount permitted by applicable law.
3. Termination
This Agreement shall terminate thirty (30) days after either party's written notice to the other party that such other party is in material breach of any of the terms and conditions of the Agreement unless the other party cures such breach within said thirty (30) day period. Upon the termination of a Service Order for any reason, PM will cease providing the Services set forth in such Service Order and Company agrees to promptly return the applicable Software to PM (or have an officer of Company certify that it has been destroyed).
4. Use of Software and Services.
(a) Company will not: (i) resell, copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or allow third-party access to any Service or Software or related documentation; (ii) remove any proprietary notices or labels from the Services or the Software; (iii), modify, translate, or create derivative works based on the Services or the Software; or (iv) copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or the Software.
(b) Company represents and warrants that it shall advise its users, via its existing online policies (i.e., Terms of Service and Privacy Policy) or other reasonable means, of: (i) the offerings to be provided as part of the Services; (ii) the information that may be collected under those offerings, and how that information may be used by Company and/or PM; and (iii) the user's ability to opt-out of participation in those offerings at any time.
5. Proprietary Rights
(a) Company acknowledges and agrees that as between PM and Company, ownership of the Software and Services resides with PM exclusively and in perpetuity. Nothing herein shall grant Company a license or other proprietary interest in the Software and Service except for the license to the Software as set forth in section 1 above.
(b) Company shall provide to PM certain audio-visual design assets (including but not limited to photographic images, video, logos, animations, illustrations, etc.), technology interfaces, logos, service marks, trade names, and other identifying or branding elements of Company as required to perform the Services (the "Company Content"). Company grants to PM a non-exclusive, non-transferable license to use and display, during the Term, the Company Content, solely for the purposes of allowing PM to perform its obligations under this Agreement. PM agrees that the Company Content and the goodwill associated with them are and will remain the sole property of Company and PM agrees not to contest the ownership of the Company Content, nor misappropriate the Company Content.
6. Data
(a) As between PM and Company, Company shall own and have the exclusive rights to use all data collected by PM on Company's behalf from users of the Company Web Site except as stated in this section 6 ("Data"). The Data, including all reports containing the Data, shall be deemed Company's Confidential Information.
(b) Notwithstanding section 6(a) above, PM may: (i) capture and maintain the Data in connection with its provision of Services to Company and enforcement of its rights as described in the Agreement and (ii) disclose any Data if required by law or valid order of a court or other governmental authority (provided that PM will deliver reasonable notice to Company and use commercially reasonable efforts to cooperate with Company's attempt to obtain a protective order). PM also aggregates anonymous information through its provision of the Services. This information does not contain any of the personally identifiable Data that may be sent to PM in the course of Company's use of the Services (i.e., no email addresses, no usernames, no passwords, etc.). PM uses this information to improve the quality of its products and services and for statistical purposes. The information, including all reports containing this information, shall be deemed PM's Confidential Information.
7. Confidential Information
PM and Company acknowledge that during the Term, each party may acquire confidential, proprietary and/or non-public information of the other party ("Confidential Information") Confidential Information includes that which is conspicuously marked "Confidential," "Proprietary" or the like and/or that which should reasonably be understood by the receiving party as being confidential or proprietary to the disclosing party. Confidential Information does not include any information that (a) is generally available to the public, (b) was in the rightful possession or known by the receiving party prior to receipt from the disclosing party, (c) was rightfully disclosed to the receiving party by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing party. The obligations set forth in this section 7 shall not apply to the extent that the other party's Confidential Information is required to be disclosed by law or valid order of a court or other governmental authority; provided that the responding party agrees to deliver reasonable notice to the other party and use commercially reasonable efforts to cooperate with such other party's attempt to obtain a protective order. Each party agrees to take commercially reasonable measures to protect the confidentiality of the Confidential Information of the other party during the term of the Agreement and for a period of three (3) years following termination of the Agreement (except that said obligation shall continue in perpetuity for PM with respect to the Data).
8. Representations and Warranties
Each party represents and warrants that: (a) it has the full power and authority to enter into this Agreement and may do so without violating any other agreement to which it is a party and (b) it shall comply with all applicable laws, rules and regulations, including without limitation all applicable anti-spam laws, rules and regulations such as but not limited to The CAN-SPAM Act of 2003 as may be amended. Except as expressly stated above, neither party makes nor assumes any direct, indirect, express, or implied warranties whatsoever.
9. Indemnifications
(a) PM shall indemnify, defend, and hold harmless Company and its affiliates and their shareholders, directors, officers and employees (each, a "Company Indemnified Party") from and against any and all losses, claims, damages, liabilities and expenses incurred by the Company Indemnified Party in any third-party action arising or resulting from: (i) any breach by PM of any of its representations or warranties hereunder; or (ii) any third party claim that Software or Service, when used within the scope as set forth in this Agreement, infringes any patent enforceable in the United States, copyright, trademark, or service mark of any third party. In addition, if the Software or Service is, or in the opinion of PM may become, the subject of any claim for infringement or if it is adjudicatively determined that the Software or Service is infringing, then PM may, at its option and expense, either (i) procure for Company the right from such third party to use the Software or Service, (ii) replace or modify the Software or Service with other suitable and reasonably equivalent products so that the Software or Service becomes noninfringing or (iii) if (i) and (ii) are not practicable, terminate the Agreement and provide Company with a pro rata refund of prepaid Services Fees, if any. THIS SECTION 9(a) STATES PM'S ENTIRE OBLIGATION AND COMPANY'S SOLE REMEDIES WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
(b) Company shall indemnify, defend, and hold harmless PM and its affiliates and their shareholders, directors, officers and employees (each, a "PM Indemnified Party") from and against any and all losses, claims, damages, liabilities and expenses incurred by the PM Indemnified Party in any third-party action arising or resulting from: (i) any breach by Company of any of its representations or warranties hereunder; (ii) the Company Content; and (iii) PM's collection and storage of Data on behalf of Company as set forth in this Agreement.
(c) Neither party will have liability for any infringement to the extent that the other party (i) used other than the then-current, commercially available version of the subject intellectual property; (ii) used the subject intellectual property other than as set forth in its accompanying documentation; (iii) modified the subject intellectual property unless such modification was made or authorized by the providing party, when such infringement would not have occurred but for such modification; or (iv) combined or used the subject intellectual property with other software, hardware or other products not specifically approved by the providing party in advance and in writing if such infringement would have been avoided by the use of the subject intellectual property not in such combination
(d) Each indemnifying party's obligations set forth in sections 9(a) and (b) above are contingent upon the indemnifying party: (i) promptly notifying the indemnifying party of any matter giving rise to a demand for indemnification hereunder; and (ii) reasonably cooperating with the indemnifying party's defense or settlement of any such matter. The indemnifying party shall have sole control of the defense or settlement of any such claim; provided, however, that the indemnified party may participate in the proceedings with independent legal counsel retained at its own expense.
10. Disclaimer & Limitation of Liability
(a) In no event shall one party be liable to the other or to any third party (whether under breach of contract, product liability, negligence, indemnity obligation or otherwise) for any indirect, incidental, special, punitive, or consequential damages, including without limitation any damages for loss of profits, loss of earnings or loss of business opportunities, or loss of data (even if foreseeable or advised of the possibility of such damages). Except for Company's payment obligations under a Service Order, the aggregate liability of the parties shall not exceed the aggregate amount of money actually paid by Company to PM pursuant to this Agreement during the twelve (12) month period prior to the date the cause of action arose. The provisions of this section 10(a) shall apply notwithstanding any provision of this Agreement to the contrary and regardless of the form of the claim or cause of action.
(b) No action or claim hereunder shall be made by or on behalf of a party against the other more than one (1) year after the discovery of the event giving rise to such action or claim.
11. General
This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. If any part of this Agreement is for any reason found to be invalid or unenforceable, the Agreement will be enforced to the maximum extent permitted by law, and the remainder of this Agreement will continue in full force and effect. All notices and consents required or permitted hereunder must be in writing and sent by certified or registered mail (return receipt requested) or personal delivery (with confirmation of delivery) to the address specified below or such other address as the party specifies in writing per this provision. Notice is effective upon confirmation of receipt. This Agreement, which consists of the PM Service Order, together with these Standard Terms & Conditions and any exhibits, addendums or other attachments thereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior or contemporaneous agreements and understandings between the parties. Provisions that should reasonably be considered to survive termination of this Agreement shall survive. The parties are independent contractors. There is no relationship of partnership, agency, employment, franchise, or joint venture between the parties. Neither party has authority to bind the other or incur any obligation on the other's behalf. This Agreement may be modified or amended only in a writing signed by the parties hereto. A party's failure to enforce any provision of this Agreement is not a waiver of that or any other provision of this Agreement, or of the right thereafter to enforce any aspect of this Agreement. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of any cause beyond the reasonable control of such party. If any action to enforce the terms hereof, the prevailing party is entitled to reasonable attorneys' fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled. Neither party shall assign, sublicense or otherwise transfer its rights and/or obligations under this Agreement, in whole or in part, without the prior written consent of the other party; provided however, that either party may assign this Agreement upon notice but without the other party's consent to: (i) any entity controlling, controlled by, or controlled in conjunction with the assigning party or entity that acquires substantially all of the shares, assets or business of such party. Any attempt to do so without such consent will be void. The Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement may be executed in counterparts, each of which is an original and all of which shall together constitute one and the same instrument. This Agreement is binding when one or more counterparts bears the signatures of each of the parties. A faxed signature is legally binding.