WHEREAS, NextMark, Inc. d/b/a Bionic Advertising Systems (“Bionic”) develops and provides specialized software for use, and provides related services, in the fields of advertising and marketing. Subject to the terms set forth below, Customer desires to obtain the right to use certain of the specialized software developed by Bionic and to retain Bionic to provide certain related services, and Bionic desires to grant Customer the right to use certain of the specialized software developed by Bionic and to provide certain related services to Customer, as more fully described herein.
NOW, THEREFORE, in consideration of the above premises and the mutual agreements set forth below, the parties agree as follows:
1. Bionic Service. The Bionic for Ad Sales software is comprised of a set of the features described on Bionic’s website as revised from time to time (“Bionic Service”). For the term of this Agreement, Bionic will provide Customer with access to the Bionic website, through which Customer will be able to access and use the Bionic Service (which includes data and/or other content which is available in connection therewith).
1.1 Service Level / Always on Guarantee. Bionic will strive to keep the Bionic Service available at all times. Customer will promptly notify Bionic via telephone or e-mail of any unexpected or unscheduled interruption in the ability of the Customer to access the Bionic website (“Access Problem”). Bionic will take commercially reasonable efforts to ascertain whether the Access Problem is within the control of Bionic (“Service Interruption”). Bionic will use commercially reasonable efforts to remedy any Service Interruption within twenty-four (24) hours of Bionic’s receipt of such notification from Customer and, in any event, as soon as reasonably possible. For Service Interruptions occurring during the hours of 9:00 am to 8:00 pm Eastern Time Monday through Friday excluding holidays (“Service Hours”), if the aggregate duration of such Service Interruptions exceeds twenty-four (24) hours in any given calendar month or, alternatively, if the aggregate duration of such Service Interruptions exceeds forty-eight (48) hours during any three (3) consecutive calendar months, then Customer will have the right to terminate this Agreement immediately upon written notice to Bionic. For any Service Interruption occurring during Service Hours lasting more than one (1) hour, Customers shall be entitled to receive a credit equal to one day’s worth of Subscription Fees; provided that Customer may not receive more than one-day’s credit during any calendar day period. Service Interruptions shall not include Access Problems due to Scheduled Maintenance (as defined in Section 1.2 below). This Section 1.1 states Customer’s sole and exclusive remedy and Bionic’s entire liability for any Access Problem.
1.2 Scheduled Maintenance. Bionic will periodically schedule the complete or partial shutdown of the Bionic Service or System for maintenance, bug fixes, upgrades, or other reasons (“Scheduled Maintenance”). Bionic will provide Customer with at least twenty-four (24) hours notice of any Scheduled Maintenance, and will make commercially reasonable efforts to schedule Scheduled Maintenance outside of Service Hours. The occurrence of any Scheduled Maintenance will not limit or affect Customer’s payment obligations hereunder. “System” means all networks, systems, software and equipment used by Bionic in connection with the Bionic Service.
1.3 Software Updates. The Customer shall have the benefit of all updates and enhancements to the System software.
1.4 Customer Support. Bionic will provide reasonable telephone support for Customer’s Users for problem determination, verification and resolution on a call-back basis, and general assistance with use of the Bionic Service, during Bionic’s normal business hours of 9 a.m. to 5 p.m. Eastern time, excluding holidays.
1.5 Data Backup. Customer’s data will be backed up in accordance with Bionic’s standard procedures.
1.6 Monitoring. Bionic Service will be monitored in accordance with Bionic’s standard procedures.
1.7 Security. Bionic engages in practices that are designed to protect the security and availability of the Bionic Service. Bionic will promptly investigate any security breach it discovers and take reasonable measures (as determined in its discretion) to identify the root cause of the security breach and avoid a recurrence. If Bionic determines that a security breach has compromised non-public Customer data, unless otherwise prohibited by law, Bionic shall promptly notify Customer of such security breach.
2. Grant of License. For the term of this Agreement Bionic hereby grants to Customer a nonexclusive, non-transferable, non-assignable, revocable license, without the right to sublicense or assign, to access the Bionic website and to use the Bionic Service solely in connection with Customer’s business operations (“Bionic Service License”). The Bionic Service may incorporate or include certain software and data developed and licensed to Bionic by third parties, in which case Bionic hereby grants to Customer to the maximum extent possible the rights that Bionic is permitted to grant under the license between Bionic and the applicable third party; provided that such license shall not exceed in scope the Bionic Service License.
2.1 Restrictions on Use: Customer represents, warrants and covenants that Customer will not sell, re-sell, distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Bionic Service to any third party or reproduce or create derivative works based upon the Bionic Service (including data and/or content), or any portion thereof, without the express permission of Bionic; provided, however, that Customer may disclose reports and data obtained as a result of the Bionic Service with Customer’s clients and prospective clients. Customer’s use may be further restricted by its licenses obtained by third-party data providers. Customer further represents, warrants and covenants that neither Customer nor any of its employees, subcontractors or other personnel will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of the Bionic Service. Customer shall not use an automated software program, spider, web-crawler, URL checker, computer “robot” or other program to access the Bionic Service without the express written consent of Company. In addition and without limitation, Customer agrees to comply with the Robots Exclusion Standard. Customer shall comply with any acceptable use policy of Bionic as revised from time to time.
2.2 Ownership. Customer stipulates and agrees that Bionic is and will remain the exclusive owner of all rights, title and interests in and to the Bionic Service and any materials and information resulting from services provided hereunder; provided that Bionic grants to Customer a non-exclusive, worldwide right to use such materials and information for the sole purpose of exercising its rights under this Agreement. Subject to the foregoing, as between Bionic and Customer, Customer shall own the materials and information that it uploads or otherwise enters into the Bionic Service, as well as other items that it generates through use of the Bionic Service; provided that, Bionic retains, and Customer grants to Bionic, a perpetual, irrevocable, worldwide, royalty-free, transferable, non- exclusive right and license, with the right to sublicense, to copy, modify and otherwise use the foregoing, without attribution, duty to account or other obligation, for legitimate business purposes, such as publishing statistical information, provided that the materials and information are presented on an anonymous basis (i.e., the identity of the Customer or its customers are not disclosed) except as Bionic deems reasonably necessary in connection with legal, contractual or other requirements or as reasonably appropriate in connection with the performance of the Bionic Services (e.g. delivering a proposal to a buyer on Customer’s behalf); provided that the materials and information shall not be required to be used on an anonymous basis (i) in connection with any posts, chat room, blogs or other on-line activities in connection with which a reasonable person would not expect the information to be kept confidential and/or (ii) if Bionic otherwise receives consent to use such materials and information on an non-anonymous basis.
2.3 Compliance with Laws: Customer shall not use or permit the Bionic Service to be used (i) in violation of any applicable laws or regulations, (ii) for the propagation of worms, viruses or other malicious code, (iii) to violate the intellectual property or other rights of others (including without limitation privacy rights), (iv) to engage in any fraudulent, deceptive, illegal or unethical business or other practices or (v) in a disruptive or inappropriate manner. Bionic reserves the right to suspend the Bionic Services (or a portion thereof) without notice in the event Bionic believes that the Customer’s use (or any end user’s use) of the Bionic Service may be in violation of this section, and to terminate this Agreement for any violation of this section.
3. Fees; Expenses; Terms of Payment. In consideration of the rights and licenses granted herein, Customer agrees to pay Bionic’s fees, if any, and any applicable taxes. These fees are subject to change upon notice from Bionic to Customer. Customer will be invoiced monthly on the first day of each month. All payments are due within thirty (30) days of invoice. Any amounts not paid by the due date shall bear interest from the due date at the lesser of the rate of one and one-half (1.5%) percent per month or the maximum permitted by law.
4. Term and Termination.
4.1 Term. This Agreement will be effective as of the Effective Date and remain in full force until it is terminated.
4.2 Termination. (A) Either party may terminate this Agreement at any time with at least thirty (30) days advance written notice to the other party. (B) Either party may terminate this Agreement immediately upon written notice to the other party in the event that the other party materially breaches this Agreement. (C) Bionic may terminate this Agreement by written notice to Customer if Customer files a petition in voluntary bankruptcy or makes an assignment for the benefit of creditors, or if any other action is taken or suffered, voluntarily or involuntarily, under any federal or state law for the benefit of insolvents or otherwise granting relief from creditors.
4.3 Effect of Termination. Upon any expiration or termination of this Agreement, the licenses granted to Customer hereunder will immediately terminate. The expiration or termination of this Agreement for any reason will not relieve Customer of its obligation to pay any amount due and owing prior to the date of expiration or termination and will not affect any other rights or liabilities of the parties which may have accrued prior to the date of expiration or termination. All terms which by their nature are intended to survive termination or expiration of this Agreement shall survive, including without limitation Sections 2.2, 3, 4, 5, 6, 7, 8, 9 and 11 will survive any expiration or termination of this Agreement.
5. Confidentiality. “Proprietary Information” means all of the information, data and software furnished by one party to the other in connection with this Agreement. The Bionic Service and System are Proprietary Information of Bionic. Customer financial information and orders are Proprietary Information of Customer. Notwithstanding the foregoing, “Proprietary Information” will not include information which: (i) may be publicly disclosed by the party disclosing the information either prior to or subsequent to the receipt of such information by the receiving party; (ii) is or becomes generally known in the trade through no fault of the receiving party; (iii) may be lawfully disclosed to the receiving party by a third person to this Agreement who has lawfully acquired the Proprietary Information; or (iv) is independently developed by the receiving party without reference to or reliance upon the other party’s Proprietary Information. Each party covenants and agrees that it will not, except with the prior written consent of the other party, at any time directly by itself or indirectly through any agent or employee: (i) disclose any Proprietary Information of the other party or (ii) use Proprietary Information of the other party for any purpose other than in connection with the performance of its obligations or the exercise of its rights hereunder.
6. Warranties and Representations. Each party represents and warrants that (a) it has the right to enter into this Agreement, and (b) all necessary actions, corporate or otherwise, have been taken to authorize the execution and delivery of this Agreement, which constitutes a valid and binding obligation of the party. EXCEPT AS PROVIDED ABOVE IN THIS SECTION 6, BIONIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Bionic does not make any representations or warranties of any kind with respect to the use of the Bionic Service or System, and Customer acknowledges and agrees that the Bionic Service (including without limitation related content, databases, requests for consideration and requests for proposal) is provided on an “AS IS” basis without representations, warranties or liability of any kind. Customer acknowledges and agrees that the Bionic Services rely on Internet and other network connectivity and may rely on email systems, such systems and networks are not always available and do not always function in the intended or desired manner, and as a result the Bionic Service may not provide the desired outcomes. Due to the variability and complexity of the Internet, other networks and systems (including email systems and related email filters), Bionic cannot guarantee that communications Customer requests to be sent to another user of the Bionic Service (or similar service) will in fact be delivered, received or reviewed, or that communications Customer requests to receive from another user of the Bionic Service (or similar service) will in fact be delivered to or received by Customer.
7. Release. If Customer (now or in the future) has a dispute with any other user of the Bionic Service or any related information, services or content, Customer hereby unconditionally releases Bionic and its affiliates, and their respective employees, directors, officers, contractors, representatives and agents, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with or related to such disputes. This release applies without limitation to disputes relating to advertising programs, marketing campaigns, requests for proposal, requests for consideration, any agreements, services, deliverables or products based on the foregoing, and any similar matters.
8. Feedback; License. Customer may from time to time provide suggestions, ideas, innovations, comments or other feedback (“Feedback”) to Bionic relating to the Bionic Service and/or System. Notwithstanding anything to the contrary in this Agreement, to the extent Customer provides such Feedback, Customer hereby grants to Bionic a perpetual, irrevocable, worldwide, royalty-free, transferable, non-exclusive right and license, with the right to sublicense, to copy, modify and otherwise use Feedback in any manner Bionic chooses, without attribution, duty to account or other obligation. Customer hereby grants to Bionic a perpetual, irrevocable, worldwide, royalty-free, transferable non-exclusive right and license, with the right to sublicense, to copy, modify and otherwise use content and information provided by Customer in connection with Bionic’s performance hereunder and in connection with the operation and improvement of the Bionic Service and related services. Such license includes without limitation the right to distribute copies of any request for consideration or request for proposal to a Bionic customer.
9.1 Customer Indemnification. Customer agrees to indemnify, save and hold harmless Bionic and its affiliates and their respective employees, directors, officers, contractors, representatives and agents, from and against any and all damages, costs, expenses and judgments, including reasonable attorneys’ fees, which arise out of or relate to any claim, demand, dispute or action (i) based on any requests for proposal, requests for consideration, data cards, data, information or other content provided by Customer or that Customer instructs Bionic to use or develop, including without limitation any claims that any of the foregoing infringes any patent, copyright, trade secret, trademark or other intellectual property or proprietary rights, is defamatory or slanderous, or that the collection or use of which violates the privacy rights or contractual rights of another, (ii) based on any request for proposal or request for consideration, any delivery or receipt of services or products related thereto, any agreement(s) related thereto, and/or any alleged or actual failure to perform or damages arising in connection with any such agreement(s), (iii) by Customer’s suppliers, business partners, end users or direct or indirect customers alleging that they were damaged, suffered a loss, or have any other claim by virtue of the use of the Bionic Service or (iv) based on Customer’s breach of Section 2 of this Agreement.
9.2 Bionic Indemnification. Bionic shall defend Customer from and against any claims by a third party that the Bionic Service, as provided by Bionic under this Agreement, directly infringes a United States based copyright, issued patent, trademark or trade secret of such third party (collectively, a “Claim”). Further, Bionic shall indemnify Customer from and against all damages finally awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by Bionic that result from the Claim. If Bionic believes that the Bionic Service may be subject to any claim of infringement, then Bionic may, at Bionic’s own expense, procure for Customer the right to continue using the Bionic Service, or replace same with non-infringing service, or modify the Bionic Service so that it becomes non-infringing (such replacement or modification not materially changing the Bionic Service). If none of the foregoing is available on terms that Bionic deems are commercially reasonable, then Bionic may terminate Customer’s rights to access and use the Bionic Services, in which case Bionic shall refund Customer a pro-rata amount of any prepaid Bionic Service Subscription Fees applicable to the unutilized portion of the subscription term for the Bionic Services. Bionic shall have no liability for any Claim in-whole or in-part resulting from (i) Customer’s data or materials, (ii) use of the Bionic Service other than as specified in the Bionic Service documentation or this Agreement, or (iii) the use or combination of the Bionic Service with any hardware, software, products, applications, networks, services, data or other materials not developed by Bionic. The obligations of Bionic to defend or indemnify Customer as set forth in this paragraph apply only if: (a) Customer promptly informs Bionic in writing of any Claim, (b) Bionic is given exclusive control of the defense of such Claim and all negotiations relating to the settlement thereof (except that Bionic may not settle any such Claim unless the settlement unconditionally releases Customer of all liability and Customer may participate in the defense of the Claim at its sole cost and expense), and (c) Customer provides Bionic all reasonably requested assistance in connection with the defense of the Claim. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BIONIC’S ENTIRE LIABILITY FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
10. Limited Liability. BIONIC SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF ANTICIPATED PROFITS, REVENUES, DATA OR BENEFITS. IN NO EVENT WILL BIONIC’S AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT OF FEES ACTUALLY PAID TO BIONIC BY CUSTOMER HEREUNDER FOR THE CALENDAR YEAR PERIOD IN WHICH THE EVENT(S) GIVING RISE TO ANY CLAIM(S) FOR DAMAGES ALLEGEDLY OCCURRED OR (II) US$100; PROVIDED THAT, THIS SENTENCE SHALL NOT APPLY TO BIONIC’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9.2 ABOVE. EXCEPT FOR LIABILITY ARISING UNDER SECTION 9.2, CUSTOMER SHALL NOT BRING ANY CLAIM AGAINST BIONIC UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE DATE THE CAUSE OF ACTION HAS ARISEN.
11. Trademarks & Publicity. Neither party will use the name or any trademarks, trade names and/or service marks of the other party for advertising, marketing and/or other publicity purposes without the consent of the other party.
12. General Provisions.
12.1 Entire Agreement; Assignment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other written or oral understandings, agreements and communications with respect to such subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no remedy in respect of, any representation, assurance, warranty or statement, except to the extent expressly set forth in this Agreement. This Agreement may be modified or amended only by a writing signed by both parties. Bionic may assign this Agreement in the context of its merger or the sale of substantially all of its assets relating to the subject matter of this Agreement. For the avoidance of doubt, this Agreement shall apply to Customer’s use of the Bionic Services even if such use occurred prior to entering into this Agreement.
12.2 Non-Waiver. The failure of either party to demand any performance when due, or to pursue any right or remedy arising from the other party’s non-performance of any obligation, will not waive such party’s right to demand such performance at a later time or estop or otherwise bar such party from asserting any claims, allegations or causes of actions, or seeking any remedies that arise from or relate to the other party’s failure to perform.
12.3 Force Majeure. Bionic will not be liable for any failure of or delay in performance directly or indirectly caused by acts of Customer, its agents, employees, or subcontractors, causes beyond the control of the Bionic, including but not limited to acts of God, acts of the public enemy, government acts, Internet and other network connectivity and/or availability problems, fire, floods, epidemics, quarantine restrictions, strikes, civil commotions, freight embargoes, any unusually severe weather conditions, or defaults of or delays by Customer’s employees, sub-contractors and suppliers.
12.4 Choice of Law, Venue. This Agreement will be governed by the law of the State of New Hampshire without regard to its principles of conflicts of laws. The parties stipulate and agree that any litigation arising from or relating to this Agreement will be filed and prosecuted before a court of competent subject matter jurisdiction in New Hampshire.
12.5 Independent Contractors. Each party and its respective employees are independent contractors in relation to one another with respect to all matters arising under this Agreement. Nothing herein will be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
12.6 Severability. If any provision of this Agreement is unenforceable, the remaining provisions will remain in effect, to be construed as if the unenforceable provisions were originally deleted.
12.7 User. A User is an employee of Customer that is authorized by Customer to access the Bionic Service under this Agreement. Each User must have their own User ID issued to them by Bionic. Multiple employees may not use the same User ID. Customer shall only allow access to the Bionic Service to Users.