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READ CAREFULLY THIS SERVICE AGREEMENT ("AGREEMENT"), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN BRINGHUB, INC. ("BRINGHUB"), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICE, "CUSTOMER"), REGARDING ACCESS AND USE OF COMPANY’S MINI-STOREFRONT, A PROPRIETARY APPLICATION THAT ALLOWS CUSTOMERS READERS OR USERS OF CUSTOMERS CONTENT TO VIEW PRODUCTS, CLICK TO “FAVORITE” PRODUCTS, AND CLICK DIRECTLY TO THE PRODUCTS RETAIL SITE ("SERVICES"). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER. BY SELECTING THE "ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICE ("ACCEPTANCE"), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. FOR THE PURPOSES OF THE TERMS BELOW AND CONDITIONS IN THIS AGREEMENT, THE "ORDER FORM" SHALL MEAN THE ORDER PAGE ON THE COMPANY’S WEBSITE TO WHICH THE SERVICES RELATE.IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD NOT CLICK THE “ACCEPT” BUTTON, WHICH MAY PROHIBIT ACCESS OR USE OF THE COMPANY’S SERVICES.
A. Bringhub has developed and/or obtained rights to distribute certain proprietary software identified in Section 1.
B. Customer desires to obtain a license to use such software and Bringhub is willing to grant such a license to Customer subject to the terms and conditions set forth in this Agreement.TERMS OF AGREEMENT
1. DEFINED WORDS AND PHRASES. Certain capitalized words and phrases not otherwise defined have the meanings set forth below.
“Bringhub Services” refers collectively to the Software and all services related to it provided by Bringhub on a software-as-a-service basis or pursuant to a SOW.
“Software” means The Bringhub Mini Storefront, a proprietary application that allows Customer’s readers or users of Customer’s content to discover and favorite products from multiple retailers and vendors, directly from Customer’s site.
2.1. Limited-Purpose License Grant. Bringhub grants to Customer a limited license to install the Software onto a server operated and under the direct control of Customer; and to operate the Software solely for its internal use and in accordance with any standard documentation or specifications provided by Bringhub in connection with the Software solely in connection with a Customer Property set forth in the Partner Approval Form. This license is effective only during the Term, is limited, non-exclusive and non-assignable, and may not be sublicensed, in whole or in part. The scope of this license is defined by the terms and conditions of this Agreement, and this license is granted subject to those terms and conditions.
2.2. No Implied Licenses. Customer acknowledges that there are no licenses granted by implication under this Agreement. Bringhub reserves all rights that are not expressly granted. Customer acknowledges that, as between the Parties, Bringhub owns all intellectual property rights and proprietary interests that are embodied in, or practiced by, the Software, its associated documentation and Services.
2.3. Restrictions on Scope of Licenses. Customer agrees not to act outside the scope of the rights that are expressly granted by Bringhub in this Agreement. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Bringhub Services or any Software (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Bringhub Services or Software; use the Bringhub Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of its end users and customers; or use the Bringhub Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation), as well as any of Customer’s contractual obligations. Specifically, but without limitation, Customer will comply with the notice, “opt out” and other provisions of the following California laws: California Business and Professions Code Sections 17538.41 and 17538.45. Customer may not use any automatic tools, including, but not limited to, bots or scripts to access or use the Services. Customer may not export or re-export any full or partial copies of the Software or documentation outside the United States of America, unless it first obtains any and all licenses and permits that may be required from governmental authorities and shall comply with all export control restrictions applicable the Software. Customer hereby agrees to indemnify and hold harmless Bringhub against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Bringhub Services.
2.4. Customer Content Restrictions. The Bringhub Services and the Software may not be used by Customer on any webpages, mobile applications, advertising and promotions or other properties which in any way (i) discriminate or advocate or endorse discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) include material that is libelous, defamatory, obscene, pornographic, abusive, offers or advocates use of illegal substances, advocates sedition or illegal activities or is other deemed offensive or displays banners of or links to any other web site that carries any such content; (iii) contain or promote deceptive, false or misleading information; (iv) knowingly include material that constitutes, involves or contributes to any violation of law or intellectual property or other rights of third parties.
2.5 Customer Content. The parties acknowledge that certain information and content is to be provided by Customer (“Customer Content”). Bringhub will not be liable for any failure to perform the Bringhub Services that is caused by Customer’s delay in or failure to provide Customer Content. Customer grants Bringhub a world-wide, non-exclusive, royalty-free license during the term of this Agreement to use, reproduce, electronically distribute, display, and perform the Customer Content to provide the Bringhub Services. Customer represents and warrants that it owns all right, title and interest in and to the Customer Content. Customer shall indemnify Bringhub for any claim that the Customer Content infringes or violates the intellectual property or other rights of a third party.
2.6. Software Requirements. During the Term of this Agreement, Customer shall place the Software on all of Customer’s desktop, mobile optimized, tablet, application article pages of the Customer Property and maintain the Software in such locations. Customer agrees to notify Bringhub in writing if it intends to place the Software (i) on any article page that uses pagination, fly-outs, interstitials, multimedia module or that refreshes the Software with each page view; or (ii) a non-article page (e.g. a gallery or slideshow page), so that Bringhub can approve each such location and provide Customer with specific code for all such other locations or pages. Customer shall not take any actions described in the foregoing sentence without Bringhub’s written approval. The Software, and any item implemented by the Software, shall appear directly below the main Customer Content on each page of the Customer Property on which the Software is installed or running, or as mutually agreed upon in writing (e-mail shall suffice).
2.7 Exclusivity. Customer agrees that it will not engage any third party, including without limitation, any of Bringhub’s competitors to make product recommendations on any websites owned or operated by it, including, without limitation the Customer Property, or to provide a service that is similar to the Service provided by Bringhub. For clarity, Customer agrees that any product recommendation services provided by a third party prior to the Effective Date will be replaced by Bringhub’s Services on or before the Effective Date. Customer hereby grants Bringhub the license and right during the Term to use Customer’s name, trademark and logos to identify Customer as a Bringhub customer.
3.2 Bringhub Consumer Information License Grant; Restrictions. Subject to the terms and conditions of this Agreement, Bringhub hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, license to use the Consumer Information , solely for its internal business purposes and solely during the Term. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly rent, lease, distribute, disclose, pledge, assign, sell, license or otherwise transfer or encumber rights to or make available to any third party the Consumer Information (including without limitation for the purpose of the third party distributing or publishing the Consumer Information). Customer is responsible for all of Customer’s activity in connection with the Consumer Information and shall be solely responsible for any breach of obligations in this Agreement by its employees, contractors and agents. Customer (a) shall use the Consumer Information in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Consumer Information (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Consumer Information in a manner that violates any third party intellectual property, contractual or other proprietary rights.
5.1 Sponsored Results Revenue Share. Subject to the terms of this Agreement, Net Revenue for any sponsored results displayed through the Software (“Sponsored Results”) on the applicable Customer Property shall be divided as indicated on the Partner Approval Form. “Net Revenue” means gross revenue actually received by Bringhub for the placement of any Sponsored Results displayed on the Customer Property, less any reasonable and customary agency fees, commission fees, make-goods, charge-backs, deductions, reversals, bad debt and credits. All payments due to Customer pursuant to this Section 5.1 shall be made within sixty (60) days following the end of each calendar month for sponsored results served during the preceding calendar month.
5.3 Operating Expenses. Customer shall bear its own expenses in connection with exercising its rights or performing its obligations under this Agreement.
Customer acknowledges that, in the course of using the Software and performing its duties under this Agreement, Customer may obtain or create information relating to the Software and/or to the Bringhub Services (“Confidential Information”). Such Confidential Information shall belong solely to Bringhub and includes, but is not limited to, the existence of the Software, its features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, equipment design and architecture, computer code, internal documentation, design and function specifications, equipment requirements, problem reports, analysis and performance information, equipment documents, and other technical, business, marketing and financial information, plans and data. For sake of clarity, information is considered Confidential Information for so long as it has not been made known to the general public by Bringhub or through the rightful actions of a third party, and for so long as the information holds value, as reasonably determined by Bringhub, by virtue of remaining confidential. During the Term and after its termination Customer: (a) shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information without the prior written consent of Bringhub, or unless such Confidential Information becomes part of the public domain without breach of this Agreement by Customer, its officers, directors, employees or agents, (b) agrees to take all reasonable measures to maintain the Confidential Information in confidence, but not less than those it takes to safeguard its own confidential information; and (c) will disclose the Confidential Information only to those of its employees and consultants as are necessary for the uses licensed hereunder and are bound by obligations of confidentiality. Customer acknowledges and agrees that due to the unique nature of Bringhub’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, upon any such breach or threat thereof, Bringhub shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. Upon the termination of this Agreement, Customer shall return or destroy all Confidential Information, as requested by Bringhub.
7.1. Representations and Warranties.Customer represents that (i) it has the authority to enter and perform this Agreement under applicable law and under its articles of incorporation, bylaws and/or other governance documents. Customer warrants that all of its representations above will remain true throughout the term of this Agreement; and that full performance of its duties under this Agreement will not conflict with its performance under any other legally binding agreement. Customer agrees that, in the event that any of its representations or warranties under this Agreement ceases to be true or accurate, it will promptly notify Bringhub.
7.2. Warranty and Disclaimer. Bringhub shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Bringhub Services in a manner which minimizes errors and interruptions in the Bringhub Services. The Bringhub Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Bringhub or by third-party providers, or because of other causes beyond Bringhub’s reasonable control, but Bringhub shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, BRINGHUB does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the BRINGHUB Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BRINGHUB SERVICES ARE PROVIDED “AS IS” AND BRINGHUB DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.3. Force majeure. Bringhub shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Bringhub. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
7.4 Limits of Contractual Liabilities.
EXCEPT FOR CUSTOMER’S BREACH SECTION 2.1 OR SECTION 5, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THE POSSESSION OF, USE OF, OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM OR LIABILITY IS BASED UPON ANY CONTRACT, TORT, BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY. THE TOTAL LIABILITY OF BRINGHUB, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE FEES PAID OR PAYABLE TO BRINGHUB HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.1. Term. The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect until terminated by either party pursuant to the provisions of this Agreement (the "Term"), unless either Party terminates it in one of the situations permitting termination as described below.
8.2 Termination for Breach. Either party may terminate this Agreement upon thirty (30) days notice to the other party if the other party breaches any of its material obligations under this Agreement.
8.3. Termination After Extended Force Majeure. If Customer is prevented from performing its duties under this Agreement for five (5) or more days by an event of force majeure, Bringhub may terminate this Agreement if it delivers an initial notice stating its intent to terminate, thereafter waits for at least five (5) days more, and, if the event of force majeure has not been resolved by that time, delivers a second notice. The Agreement will terminate immediately upon receipt of the second notice.
8.4. General consequences of termination. Effective immediately upon expiration or termination of this Agreement, (i) all licenses granted under this Agreement will become void, (ii) Customer shall cease all use of the Software and shall destroy all copies of the Software and associate documentation in its possession, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any intellectual property rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party.
8.5. Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Sections 2.2, 2.3, 2.5, 6, 7.4, 8.5, 9 and 10. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely.
Bringhub shall hold Customer harmless from liability to third parties resulting from infringement by the Bringhub Services of any United States patent or any copyright or misappropriation of any trade secret, provided Bringhub is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Bringhub will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Bringhub Services (i) not created by Bringhub, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Bringhub, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Bringhub from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from Bringhub’s indemnity obligation by the preceding sentence.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Bringhub’s prior written consent. Bringhub may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Bringhub in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.