These Terms and Conditions of Direct Customer Agreement (“Agreement”) are dated and effective as of ________, 2015 (the “Effective Date”) by and between Connectivity, Inc., a Delaware corporation, with its principal office and place of business at 100 East Tujunga Avenue, Suite 200, Burbank, CA 91502 (“Connectivity”) and _______________________________________ with its principal office and place of business at ___________________________________________________________________ (“Customer”).
Connectivity has developed, owns and operates a Listings Management product (the “LM”) and an Opinion Monitoring System (the “OMS”), proprietary online products that display information aggregated from around the web about a business to its owner and offer a way to change and enhance the information (collectively, the “Services”) and wishes to enter into an agreement whereby Customer will utilize the Services, as specifically set forth in the attached Order Form, under the following terms. This Agreement includes all Schedules, Order Forms and Exhibits hereto and the Terms and Conditions affixed hereto, which are made a part hereof and incorporated herein.1. Future Product Development:
Connectivity will continue to develop, at its own expense, future enhancements and revisions to the Services. Connectivity may in its sole discretion offer new products and services to Customer during the term of this Agreement, at new pricing to be mutually negotiated. Customer has no obligation to use any new products or services offered by Connectivity.
The minimum pricing and Payment Terms for the Services will be as set forth in the Order Form attached to this Agreement. Customers may increase the number of locations during the Initial Term or any Renewal Term, which will be billed according to the Payment Terms. Renewal Terms will automatically be billed at the then current level of locations.
No press release regarding this Agreement shall be issued by either party unless mutually agreed upon in writing by the Parties.
Connectivity will be and at all times remain the exclusive owner of the Connectivity Code and the Services, including all revisions, enhancements, updates, improvements, releases and modifications thereto made by either party during the term of this Agreement, and including any of the foregoing made by Connectivity based on or as a result of any idea, concept, suggestion or other contribution by Customer. Furthermore, Connectivity will be and at all times remain the exclusive owner of all crawled information it provides to Customer under this Agreement.
The initial term of this Agreement shall be for a period of one (1) year (“Initial Term”). The Agreement shall thereafter be automatically renewed for additional terms of one (1) year each (each a “Renewal Term”), unless either party notifies the other no later than thirty (30) days prior to the end of the then current Renewal Term that it does not wish to renew the Agreement.
This Agreement may be terminated as follows:
(a) By Connectivity if Customer is in arrears on undisputed payments for ninety (90) days or more;
(b) By either party if the other party materially breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party;
(c) By either party for convenience, upon ninety (90) days written notice to the other party; provided that if Customer terminates the Agreement under this section prior to the expiration of the Initial Term of any Renewal Term, there shall be no partial or pro-rated refund of any annual payment already made by Customer.
(d) By either party if the other party becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment for the benefit of creditors, or any other action or proceeding for relief from creditors, which is not dismissed within sixty (60) days after filing.
7. Standard Terms:
The Terms and Conditions referenced herein and attached to this Agreement are an integral part of this Agreement and are incorporated by reference herein. In the event of any conflict or inconsistency between the terms of Sections 1 through 7 herein and the Terms and Conditions, this Agreement shall control.
STANDARD TERMS & CONDITIONS
A. Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Services and the know-how, technology, techniques, or business or marketing plans, customer lists, customer databases and prospective customer leads related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. “Confidential Information” includes all information and material which is proprietary to the disclosing party, whether or not marked as “confidential” or “proprietary” and which is disclosed to another party hereto, which relates to the disclosing party’s past, present, or future research, development, or business activities. Confidential Information includes, without limitation, all of the following: computer software, data, documentation, diagrams, flow charts, research, development, processes, procedures “know-how,” new product or new technology information, product prototypes, product copies, manufacturing, development or marketing techniques and material, development or marketing timetables, strategies, and development plans, including trade names, trademarks, customer, supplier, or other personal names, and other information related to customers, suppliers, or personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and other trade secrets or nonpublic business information. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure. Customer and Connectivity acknowledge that they consider the existence of this Agreement, and the pricing contained herein, confidential. Customer and Connectivity agree that they shall not, without the prior written consent of the other party, disclose the existence of this Agreement, the information contained herein, or any Confidential Information delivered by either party to any person other than: (i) to comply with applicable securities laws and exchange rules, (ii) to obtain the consent for such transaction from any secured parties and/or significant shareholders or members with preferential rights, or (iii) to such party’s attorneys, consultants, accountants, lenders, investment bankers, investors and any other persons or entities who need such information in order to assist a party in determining whether to enter any ancillary agreement with the other party.
B. Return. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all tangible items containing or consisting of the disclosing party’s Confidential Information and all copies thereof, including, but not limited to software, training materials, and so forth.
2. Press Releases.
Neither party will originate any press release or other public announcement concerning the relationship between the Parties or the transactions described in this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the above, either Party shall have the right to make a press release with respect to the subject matter of this Agreement; provided that such Party provides to the other Party a copy of the proposed press release no less than five (5) business days prior to its proposed release and that the contents of such press release shall be subject to the other Party’s consent, which consent shall not be unreasonably delayed or withheld.
A. Customer will indemnify, defend, and hold harmless Connectivity, its employees, officers, directors, and agents from and against any loss, liability, damage, penalty or expense (including reasonable attorneys’ fees, expert witness fees and cost of defense) arising out of or relating to a) violation of the laws or regulations of any applicable country in the authorized territory by Customer, b) customer complaints not arising out of Connectivity’s gross negligence or misconduct, c) breach or misrepresentation of any of Customer’s representations, warranties or covenants, and d) Customer’s negligence, breach or misconduct. This covenant shall survive any termination of this Agreement.
B. Connectivity will indemnify, defend, and hold harmless Customer, its employees, officers, directors, and agents from and against any loss, liability, damage, penalty or expense (including reasonable attorneys’ fees, expert witness fees and cost of defense) arising out of or relating to breach of any representation made by Connectivity hereunder. This covenant shall survive any termination of this Agreement.
4. Disclaimer of All Warranties.
THE CONNECTIVITY SERVICES ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY WHATSOEVER. CONNECTIVITY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO CUSTOMER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CONNECTIVITY OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CONNECTIVITY’S OBLIGATIONS. CONNECTIVITY SPECIFICALLY DOES NOT WARRANT THAT THE SERVICES WILL BE BUG OR ERROR FREE, UNINTERRUPTED, TIMELY OR SECURE.
5. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE CONNECTIVITY SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL CONNECTIVITY’S TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FIVE THOUSAND DOLLARS ($5,000) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
Customer shall pay, indemnify and hold Connectivity harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Connectivity’s income, and (ii) all government permit fees, customs fees and similar fees which Connectivity may incur with respect to this Agreement. Such taxes, fees and duties paid by Connectivity shall not be considered a part of, a deduction from, or an offset against, payments due to Connectivity hereunder.
7. Representations and Warranties.
Each party represents and warrants to the other party as follows:
A. The party has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against it in accordance with its terms and no provision requiring the party’s performance is or will be in conflict (with or without the passage of time) with its obligations under any charter document or any other agreement (of whatever form or subject, oral or written) to which it is a party or by which it is bound.
B. The party is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which its business make such authorization necessary or required.
C. The person or persons executing this Agreement on behalf of the party has or have the authority to enter into this Agreement and to bind such party to all the terms and conditions of this Agreement.
Subject to the limitations in this Agreement, Connectivity grants Customer the limited, nonexclusive right and license to use the Connectivity trademark (the “Trademark”) during the term of this Agreement solely in conjunction with the marketing, promotion and resale of the Connectivity Services. Connectivity grants no rights in the Trademark or in any other trademark, trade name, service mark, business name or goodwill of Connectivity except as licensed hereunder or by separate written agreement of the parties. Customer agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Connectivity (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Customer agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of Connectivity, except for the Trademark expressly licensed hereunder. Upon expiration or termination of this Agreement, Customer will immediately cease all display, advertising and use of the Trademark and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with the Trademark or with any trademark, trade name or product designation associated with Connectivity or any of Connectivity’s products and services.
9. Intellectual Property.
“Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, Connectivity grants no right or license to Customer by implication, estoppel or otherwise to the Connectivity Services or any Intellectual Property Rights of Connectivity or Connectivity product partners. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Connectivity, in the Connectivity Services) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Connectivity (and not Customer) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the Connectivity Services and any Intellectual Property Rights incorporated therein. Neither party shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from the other party in connection with this Agreement.
A. During the Term of this Agreement, and for an additional one (1) year thereafter, Customer shall not, directly or indirectly, solicit: Connectivity’s vendors, suppliers or customers to do business with any entity or person other than Connectivity relative to the Services.
B. During the Term of this Agreement, and for an additional two (2) years thereafter, Customer shall not, directly or indirectly, solicit any of Connectivity’s employees or independent contractors to work for a person or entity other than Connectivity. Customer shall not hire or retain any employee who has left the employment or any contractor who has left the consultancy of Connectivity if such hiring is proposed to occur within six (6) months after the termination of such employee’s employment or contractor’s consultancy with Connectivity.
Customer covenants and warrants to Connectivity that Customer shall not engage in any action or activity that would result in the circumvention of purposes of this Agreement or Customer’s obligations under this Agreement.
12. General Provisions.
A. Force Majeure. No failure or omission by the parties hereto in the performance of any hereunder shall be deemed a breach under this Agreement, including any delay in completing or delivering any portion of the Services, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder, if the same shall arise from any cause or causes beyond the control of the parties, including, but not limited to the following, which, for purposes hereunder, shall be regarded as beyond the control of the parties in question: (a) the lack of timely availability of raw materials and hardware used in the development of the Services at reasonable prices; (b) acts of God; (c) acts or omissions of any government; (d) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (e) fire, storm, flood, earthquake, accident, war, rebellion, insurrection, riot, pandemic, strikes and lockouts, disputes with workmen, delays in transportation, or any cause whatsoever beyond the reasonable control of Connectivity or Customer, as applicable; provided, however, that the party so affected shall use its best efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed.
B. Costs. Each party shall pay its own respective fees and expenses incurred in connection with the negotiation, preparation, execution and delivery of this Agreement and any other documents or instruments contemplated herein.
C. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
D. Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.
E. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
F. Assignment. Neither party shall assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of the other party; provided, however, either party may assign this Agreement and its rights hereunder without the consent of the other party to the surviving corporation in any merger or consolidation to which it is a party, to an affiliate, or to any party that acquires all or substantially all of its assets or stock.
G. Amendments. Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified or waived except by a written agreement signed by both parties.
H. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein.
I. Section Headings: The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
J. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by copies by facsimile or PDF attached to an email reflecting the party’s signature hereto, and any such facsimile or PDF copy shall be sufficient to evidence the signature of such party as if it were an original signature.
K. Entire Agreement; Binding Effect. This Agreement, including these Standard Terms & Conditions, and all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
L. Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of law principles. Except for claims for injunctive relief, each party hereby agrees that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in the federal or state courts located in Los Angeles County, California. Each party irrevocably waives any objection to personal jurisdiction, improper venue or inconvenient forum in Los Angeles County, California.
M. Attorney’s Fees. If any lawsuit or proceeding shall be commenced to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.