Integrated Media Partners, LLC. (DBA “CLIKdata”) and the Customer identified below (“Customer”) (each of CLIKdata and Customer, a “Party” and collectively the “Parties”) agree as follows:
Advertiser means customers of Client’s products or services specified in an applicable Order Schedule as authorized recipients of the CLIKdata Services and/or Service Data through Client.
Client Data means all end-user data that is provided or made available by Client to CLIKdata in connection with the CLIKdata Services, including without limitation any device level data (e.g., cookie ID, device ID, IP address, user agent string, and time stamp) and audience segmentation data relating to end users of Media.
Documentation means any user guide, help information, and other documentation and information regarding the CLIKdata Services delivered or otherwise made available by CLIKdata to the Client, including any updates provided by CLIKdata from time to time.
CLIKdata Audience Data means audience segments and related data proprietary to CLIKdata, including without limitation any personally identifiable information or other end-user data of individuals (e.g., name, address, email, device information, etc.) from CLIKdata’s device graph that CLIKdata provides to Client.
CLIKdata Pixel means CLIKdata’s CLIKid proprietary pixel tag. Any software (including third-party software) that is accessed by, or distributed or provided to, Client hereunder (including without limitation any cookie or application programming interface, but excluding for clarity the CLIKdata Platform) shall be deemed a part of “CLIKdata Pixel” for the purposes of this Agreement.
CLIKdata Platform means CLIKdata’s proprietary CLIKid-hosted audience data management platform.
CLIKdata Services means the products and/or services provided by CLIKdata pursuant to an applicable Order Schedule, including, without limitation, the CLIKdata Technology and the provision of Service Data.
CLIKdata Technology means all ideas, concepts, inventions, systems, platforms, software, interfaces, APIs, designs, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets, and other technologies, implementations, and information that CLIKdata uses in providing the CLIKdata Services, but excluding Client Data. For clarity, the CLIKdata CLIKid Pixel and CLIKdata CLIKid Platform are CLIKdata Technology.
Media means online properties owned or operated by Client, or with respect to which Client is legally authorized to make use of the CLIKdata Services, including, without limitation, websites owned and operated by Advertisers.
Service Data means all analytics, data, and information created, received, or processed by CLIKdata in performing the CLIKdata Services or that result from the performance of the CLIKdata Services, excluding Client Data. For clarity, CLIKdata Audience Data is Service Data.
- CLIKdata SERVICES.
2.1 Order Schedules. This Agreement will be implemented through one or more mutually executed written work orders that reference this Agreement and contain such information as generally illustrated in Exhibit A attached hereto (“Order Schedules”). Any change to the terms of this Agreement within an Order Schedule will apply only to the CLIKdata Services described therein.
2.2 CLIKdata Services. Subject to all terms and conditions of this Agreement (including any applicable Order Schedule), CLIKdata will use commercially reasonable efforts to provide Client with the CLIKdata Services during the term of the applicable Order Schedule(s). CLIKdata may provide the CLIKdata Services directly or indirectly using contractors or other third-party vendors or service providers.
2.3 License to CLIKdata CLIKid Platform. Subject to all terms and conditions of this Agreement (including any applicable Order Schedule), CLIKdata grants Client (without right to sublicense) a nonexclusive, nontransferable right and license during the term of this Agreement to (a) access and use the CLIKdata Platform through a web-based interface, solely for Client’s internal business purposes and on behalf of Advertisers with which Client has entered into an insertion order or similar agreement for an applicable campaign, and (b) use the Documentation in connection with the CLIKdata Platform. Client’s access and use of the CLIKdata Platform shall comply with all other conditions and policies referenced in the Documentation (such as, for example, any requirements regarding third-party software, data formats, or prohibited uses).
2.4 Registration. Upon execution of this Agreement and an applicable Order Schedule, CLIKdata will provide the Client with log-in credentials to access the CLIKdata Platform and CLIKdata Services (“Account”). Client shall be responsible for all use of the CLIKdata Services initiated through Client’s account name(s) and password(s). Client agrees to take all necessary steps to protect the confidentiality of Account login and password information and to have appropriate procedures in place to prevent misuse.
2.5 Additional Accounts. Client shall only permit access to the CLIKdata Platform by duly registered users of Client. The client may create additional user accounts under its Account for (a) Client’s authorized employees and (b) Advertisers on a limited, read-only basis so that such Advertisers may view Service Data (collectively, (a) and (b) users are “Authorized Users”). As between the parties hereto, Client shall be solely responsible for all acts and omissions of any Authorized User in connection with the use of any CLIKdata Technology.
2.6 Advertisers. If specified in an applicable Order Schedule, Client may use the CLIKdata Services on behalf of Advertisers, provided that it does so in each case pursuant to an enforceable written agreement for CLIKdata’s benefit signed by the Advertiser that is at least as protective of CLIKdata and the CLIKdata Services, the CLIKdata Technology, and the Service Data as the terms herein. Client agrees that Client shall be responsible for all breaches thereof by such Advertisers. Further, in the event that Client makes Service Data available to Advertisers or uses the Service Data for the benefit of any Advertisers, it shall contractually require each such Advertiser (as applicable) to fully comply with Sections 3.3 and 3.4 of this Agreement, as if such Advertiser were itself Client. It shall contractually prohibit an Advertiser’s use of Service Data other than in accordance with this Agreement. Client shall be responsible for any breach of Sections 3.3 and 3.4 by an Advertiser.
2.7 Implementation. Client shall, and if necessary, shall require Advertisers to implement such integrations and customizations as may be reasonably required for CLIKdata to provide the CLIKdata Services and to enable Client to make use of the CLIKdata Services, in accordance with the Documentation and instructions otherwise provided by CLIKdata. CLIKdata may require the placement of specific code, pixels, cookies, links, or scripts provided by CLIKdata on Media in order to implement the CLIKdata Services, including the CLIKdata Pixel. Subject to Client’s compliance with the terms and conditions of this Agreement, CLIKdata hereby grants Client a limited, revocable, worldwide, non-exclusive, non-sublicensable, non-transferable license and right to access and implement the CLIKdata Pixel into the header or tag manager of the Media domain(s) approved by CLIKdata during the Term, solely as provided herein and in accordance with the applicable Documentation. If applicable, upon payment of any applicable Fees (as defined below), CLIKdata agrees to use reasonable commercial efforts to provide standard implementation assistance for the foregoing only if and to the extent such assistance is set forth on the applicable Order Schedule.
2.8 Campaign Monitoring and Support. CLIKdata may, but has no obligation to, monitor the performance of the Client’s active campaigns on the CLIKdata Platform to look for ways to optimize campaign effectiveness (“Campaign Monitoring Services”). In connection with the Campaign Monitoring Services, from time to time, CLIKdata may make suggestions or recommendations to the Client regarding different ways to use the CLIKdata Platform to improve results. Subject to the Client’s approval, CLIKdata may also assist the Client by making modifications to campaigns on the CLIKdata Platform. Client hereby grants CLIKdata a limited, non-transferable (except as set forth in Section 11.6), non-sublicensable license to access, display, review, and monitor Client’s activity and Client Data on the CLIKdata Platform for the purposes of providing Client with the CLIKdata Services and ensuring quality of and improving the CLIKdata Services. The Campaign Monitoring Services shall be provided to the Client in accordance with the terms set forth in the applicable Order Schedule (including any exhibits or addenda attached thereto). Support services beyond the Campaign Monitoring Services, in either scope or frequency, may be subject to additional fees in accordance with CLIKdata’s then-current rates.
2.9 Limitations. CLIKdata will not be responsible or liable for any failure in the CLIKdata Services resulting from or attributable to (a) Client’s, or any Advertiser’s, systems or software; (b) unusually high usage volumes; (c) failures in any telecommunications, network or other service or equipment outside of CLIKdata’s facilities, (d) Client’s, Client’s vendor’s or any Advertiser’s or other third party’s products, services, negligence, acts or omissions, (e) any force majeure event or other cause beyond CLIKdata’s reasonable control (such as unavailability of Client Data), (f) scheduled maintenance, or (g) unauthorized access breach of firewalls or other hacking by third parties.
2.10 License to Client Data. Client hereby grants CLIKdata a perpetual, irrevocable, worldwide, nonexclusive, non-transferable (except as set forth in Section 11.6), royalty-free license to use, reproduce, perform, display, modify, create derivatives from, distribute and transmit the Client Data (a) in connection with providing the CLIKdata Services, and (b) for CLIKdata’s lawful business purposes, including for improving, testing, and operating CLIKdata’s products and services. Client acknowledges and agrees that CLIKdata may use Client Data to provide services and products to CLIKdata’s other customers and business partners and share Service Data containing or reflecting Client Data with such third parties, which may include companies that may have overlapping or competing interests with Client, just as Service Data provided to Client may contain or reflect similar data collected from such other third parties.
2.11 License to Service Data. Subject to the terms and conditions of this Agreement, CLIKdata grants to Client a limited, non-exclusive, non-transferable, and revocable license to use during the term of this Agreement Service Data solely as expressly permitted by CLIKdata herein and in accordance with the terms and conditions of this Agreement and all applicable Rules (as defined below).
2.12 Changes. CLIKdata reserves the right to discontinue, modify, enhance, or otherwise change any CLIKdata Service or the CLIKdata Platform from time to time without notice to Client, provided that if such modification, enhancement, or change substantially or materially affects the CLIKdata Platform or CLIKdata Services as used by Client, CLIKdata will provide Client with ten (10) days prior written notice of such change. The client may terminate this Agreement upon the effectiveness of the change by providing CLIKdata with written notice.
- CLIENT RESPONSIBILITIES.
3.2 In respect of any Client Data provided hereunder, Client represents and warrants that where required by the applicable Rules (as defined below), it, or the Advertiser or other entity that collected such Client Data if Client did not itself collect such Client Data, has obtained legally compliant consent to the collection, use and disclosure of such information to allow CLIKdata to further process such Client Data in connection with the CLIKdata Services from each end user or specific device the Client Data pertains to.
3.3 Client shall and shall ensure that Advertisers shall comply with all federal, state, and local statutes, laws, rules, and regulations regarding the collection, use, and disclosure of data from or about end users and/or specific devices (collectively, “Rules”) in its use of the Service Data and CLIKdata Services and its performance of its obligations and exercise of its rights hereunder. The term “Rules” shall include, without limitation, (a) all United States federal and state rules and guidelines regarding the collection, use and disclosure of data from or about end users and/or specific devices or otherwise relating to relating to privacy and/or marketing, including without limitation the Telephone Consumer Protection Act of 1991 (as amended), the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (as amended), the California Online Privacy Protection Act of 2003 (as amended); (b) the Self- Regulatory Principles of the Digital Advertising Alliance (“DAA”), currently available at http://www.aboutads.info/principles as each set of principles may be amended from time to time by the DAA or its successor entity; and (c) to the extent applicable, the Rules of any foreign jurisdiction, including without limitation the General Data Protection Regulation (Regulation (EU) 2016/679) and the EU Directive 2002/58/EC, and, when effective, any regulation expressly superseding the same. CLIKdata may, upon reasonable notice to Client and subject to the confidentiality obligations set forth herein, audit Client’s books and records solely as necessary to determine compliance with this Agreement.
3.5 Client agrees that it: (a) shall not provide, disclose, or otherwise make available to any third party without CLIKdata’s prior written consent any Service Data; and (b) shall only use Service Data on behalf of the Advertiser for whom CLIKdata originally provided such Service Data and for the purpose of which such Service Data was shared.
3.6 Client shall make commercially reasonable efforts to prevent unauthorized access to or use of the CLIKdata Services and the Service Data and notify CLIKdata promptly of such unauthorized access or use.
3.7 Client acknowledges and agrees that as between the parties hereto, Client, not CLIKdata, shall be solely responsible for ensuring the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data provided to CLIKdata in connection with this Agreement.
- PROPRIETARY RIGHTS.
4.1 CLIKdata. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and CLIKdata (and its licensors) shall retain all rights, title, and interest (including all intellectual property and proprietary rights) in and to the CLIKdata Services, Service Data, and CLIKdata Technology, including any improvements, enhancements or modifications thereto. For the avoidance of doubt, neither Client nor any Advertiser shall have any right, title, or interest in or to any Service Data or to any information contained in Service Data that Client or Advertiser (as applicable) has not independently collected from its end users, other than those expressly provided to Client under this Agreement.
4.2 Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of CLIKdata’s Confidential Information (as defined below) to create any service, software, documentation or data that is similar to any aspect of the CLIKdata Services, CLIKdata Technology or Service Data; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of any CLIKdata Technology, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share or use the CLIKdata Services, CLIKdata Technology or Service Data in any service bureau arrangement or otherwise for the benefit of any third party (except Advertisers as may be expressly permitted pursuant to this Agreement and an applicable Order Schedule); (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the CLIKdata Services or CLIKdata Technology; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (f) use Service Data or any CLIKdata Services in a manner that violates any third party privacy or publicity rights or intellectual property, contractual or other proprietary rights; (g) use the CLIKdata Platform in any way that does or would be reasonably likely to interfere with use of the CLIKdata Services by other CLIKdata customers; (h) remove or alter any proprietary markings or notices, except solely as expressly permitted in writing by CLIKdata, or (i) permit any third party to engage in any of the foregoing proscribed acts.
4.3 Analytics and Aggregate Data. Client expressly acknowledges and agrees that (a) CLIKdata may collect information on the use, contents, performance or management of campaigns conducted on the CLIKdata Platform, and (b) notwithstanding anything to the contrary herein, CLIKdata shall have the right to (i) use and analyze Client Data for the purpose of testing, improving, and providing CLIKdata’s products and services, and (ii) create, analyze and use audience segments and other aggregate data derived from Client Data for CLIKdata’s business purposes.
4.4 General Learning. Client agrees that CLIKdata is free to use (including for research purposes) and disclose aggregate measures of Service Data, CLIKdata Technology, and CLIKdata Service usage and performance, and to reuse all generalized knowledge, experience, know-how, works and technologies (including ideas, concepts, processes, and techniques) related to or acquired during provision of the CLIKdata Services under this Agreement (including without limitation, that which it could have acquired performing the same or similar services for another Client), provided that CLIKdata may not use such data and information in a way that discloses the identity of Client. Feedback regarding the CLIKdata Services, even if designated as confidential by Client, shall not create any confidentiality obligation for CLIKdata notwithstanding anything else, and Client shall, and hereby does, grant to CLIKdata a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit such feedback for any purpose.
5.1 Scope. “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already known by it without restriction; (b) rightfully furnished to it without restriction by a third party not in breach of any obligation; (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such Confidential Information. CLIKdata’s Confidential Information shall include, without limitation, the CLIKdata Services, the CLIKdata Technology, and pricing information for CLIKdata’s products and services.
5.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use, or disclose any of the disclosing party’s Confidential Information without the disclosing party’s written consent. It shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care, to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party, provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
5.3 Compelled Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6.1 Fees. Client agrees to pay CLIKdata all fees and expenses in the amounts and at the times specified in the applicable Order Schedule (the “Fees”). The Fees may be updated from time to time upon mutual agreement of the parties hereto.
6.2 Payment Terms. Unless specified otherwise in an applicable Order Schedule, all amounts due hereunder shall be paid in full (without deduction, set-off, or counterclaim) within five (5) days after invoice in US dollars at CLIKdata’s address or to an account specified by CLIKdata. Past due amounts shall bear a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less.
6.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including, without limitation, sales taxes, use taxes, and value-added taxes). Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon CLIKdata’s net income. All amounts due hereunder shall be grossed up for any withholding taxes imposed by any foreign government.
- WARRANTIES AND DISCLAIMERS.
7.1 General. Each party represents and warrants that: (a) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it is incorporated; (b) it has full corporate power and authority and has obtained all approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery, and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
7.2 Client. Client further represents and warrants that it has and will have (a) sufficient rights in and to the Client Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement, without infringing the rights of any third party (including any Advertiser) or violating any Rule or other applicable law, rule, regulation, or industry or self-regulatory guidelines or standards and (b) a valid and enforceable written agreement in place with each Advertiser pursuant to which Client is receiving the Services hereunder.
7.3 CLIKdata. CLIKdata further represents and warrants to Client that CLIKdata owns all rights, title, and interest in and to the CLIKdata Technology or that CLIKdata has otherwise secured all necessary rights in the CLIKdata Technology as may be necessary to permit the access and use thereof as contemplated by this Agreement.
7.4 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, CLIKdata HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE CLIKdata SERVICES, CLIKdata TECHNOLOGY, AND SERVICE DATA, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND PROVIDES ALL CLIKdata SERVICES, CLIKdata TECHNOLOGY, AND SERVICE DATA PROVIDED HEREUNDER “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXCEPT SOLELY AS EXPRESSLY SET FORTH IN SECTION 7.3. CLIKdata, ALONG WITH ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND PARTNERS, DO NOT WARRANT THAT: (I) ANY CLIKdata TECHNOLOGY WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY INFORMATION CONTAINED IN ANY SERVICE DATA HAS BEEN COLLECTED IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION THOSE RELATING TO PRIVACY; (III) ANY INFORMATION CONTAINED IN ANY SERVICE DATA SHALL BE CURRENT AND ERROR-FREE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (V) ANY CLIKdata TECHNOLOGY IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (VI) THE RESULTS OF USING THE CLIKdata SERVICES, CLIKdata TECHNOLOGY AND/OR SERVICE DATA WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS. UNLESS EXPRESSLY PROVIDED OTHERWISE, USE OF ALL CLIKdata TECHNOLOGY AND SERVICE DATA IS SOLELY AT THE CLIENT’S OWN RISK.
8.1 Client. Client shall defend, indemnify, and hold harmless CLIKdata, its affiliates, and their respective directors, officers, employees, and agents from and against all third-party claims, damages, liabilities, assessments, losses, costs, and other expenses (including, without limitation, reasonable attorneys’ fees and legal expenses) (“Losses”) arising out of or resulting from any unaffiliated third party claim, demand, suit, action or any other proceeding (“Claim”) that arises out of or relates to: (a) Client’s use or disclosure of the CLIKdata Services, CLIKdata Technology or Service Data other than as expressly authorized by this Agreement, (b) Client’s breach of any agreement with a third party (including specifically any Advertiser), (c) Client’s breach of any representation, warranty, covenant or other agreement made herein, (d) any Client Data, (e) any Claim excluded under Section 8.2, or (f) advertisements targeted by Client or Advertisers using Service Data.
(a) Except as provided below, CLIKdata shall defend, indemnify, and hold harmless Client from and against any Losses arising out of or resulting from any Claim based on Client’s authorized use of Service Data in accordance with all terms and conditions set forth in this Agreement and all applicable Rules.
(b) Except as provided below, CLIKdata shall defend, indemnify, and hold harmless Client from and against any Losses arising out of or resulting from any Claim alleging that the CLIKdata Services or CLIKdata Technology infringes a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party. If any CLIKdata Service or CLIKdata Technology becomes or, in CLIKdata’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, CLIKdata may, at its option (1) obtain for Client the right to continue using the CLIKdata Services or CLIKdata Technology or (2) replace or modify the CLIKdata Services or CLIKdata Technology so that such services or technology become non-infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to CLIKdata, then CLIKdata may (3) terminate this Agreement upon written notice to Client and refund to Client any CLIKdata Services fees that were pre-paid for the then-current term, pro-rated for the remainder thereof.
(c) Exclusions. CLIKdata shall have no liability or obligation hereunder with respect to any Claim to the extent based upon (i) use of any CLIKdata Service, CLIKdata Technology or Service Data in an application or environment or on a platform or with devices for which it was not designed or contemplated; (ii) modifications, alterations, combinations or enhancements of the CLIKdata Services, CLIKdata Technology, or Service Data not created by or for CLIKdata; (iii) any Client Data, (iv) any portion of the CLIKdata Services, CLIKdata Technology, or Service Data that implements Client’s requirements; (v) Client’s continuing allegedly infringing or unlawful activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or violation of law; or (vi) use or disclosure of any CLIKdata Services, CLIKdata Technology, or Service Data other than in strict accordance with the terms and conditions set forth herein, or in violation of applicable Rules.
(d) Entire Liability. The foregoing states the entire liability of CLIKdata and Client’s exclusive remedy with respect to any actual or alleged violation of intellectual property or other rights by the CLIKdata Services or CLIKdata Technology, any part thereof, or its use or operation. 8.3 Procedures. Any claim for indemnification hereunder must be brought within two (2) years of the termination of this Agreement and requires that (a) the indemnified party provides prompt written notice of the Claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such Claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party or imposes any obligation upon the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned, or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
- LIMITATION OF LIABILITY. EXCEPT FOR ANY BREACH OF ITS OBLIGATIONS UNDER SECTION 5 (CONFIDENTIALITY), OBLIGATIONS PURSUANT TO SECTION 8 (INDEMNIFICATION), OR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL CLIKdata BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, AND GOODWILL; OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
- TERM AND TERMINATION.
10.1 Term. Unless otherwise set forth in an applicable Order Schedule, this Agreement shall commence on the Effective Date and continue for a period of one (1) year, whereupon it will automatically renew for successive periods of one (1) year each absent notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term, in each case unless earlier terminated in accordance with Section 10.2.
10.2 Termination. This Agreement may be earlier terminated (in whole or in respect of any Order Schedule) by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.3 Effects of Termination. Upon any expiration or termination of any Order Schedule or this Agreement, (a) Client shall return or destroy all CLIKdata Confidential Information and Service Data and require all vendors to do the same (unless specifically authorized otherwise pursuant to an applicable Order Schedule); and (b) all corresponding rights, obligations and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (ii) the provisions of Sections 1, 2.6, 2.9, 3.2, 3.7, 4, 5, 6, 7, 8, 9, 11 and this Section 10.3 shall survive.
- GENERAL PROVISIONS.
11.1 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Pinellas County, Florida, and both parties consent to the jurisdiction of such courts with respect to any such action. The parties agree that, except (a) in the event of any breach or threatened breach of Section 4 or 5 hereof, or (b) otherwise where their rights or interests may be adversely affected by doing so (in each party’s own sole discretion), they will confer in good faith with the other party with respect to any disputes among them arising out of this Agreement before bringing any such action.
11.2 Remedies. Except as explicitly provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach without the necessity of posting any bond.
11.3 Notices. All notices under this Agreement will be in writing, in English, and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile; the day after being sent, if sent for next-day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.4 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
11.5 Publicity. Client hereby consents to the inclusion of its name and logo in customer lists that may be published as part of CLIKdata’s marketing and promotional efforts. From time to time, upon CLIKdata’s request, the Client agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases, and writing testimonials and case studies with statements attributed to a named employee of Client). The parties shall mutually agree on the language of a press release or other external marketing materials concerning the arrangements under this Agreement between Client and CLIKdata.
11.6 Assignment. This Agreement and the rights and obligations hereunder may only be assigned, in whole or in part, by either party with the other party’s written consent, not to be unreasonably withheld. However, without consent, CLIKdata may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by the sale of assets or equity, merger, consolidation, or otherwise). This Agreement shall be binding upon and inure to the benefit of the parties’ successors, representatives, and permitted assigns.
11.7 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent, or representative of the other party or both parties as joint venturers or partners for any purpose.
11.8 Entire Agreement. This Agreement (including any Order Schedules) constitutes the entire agreement. It supersedes all prior negotiations, understandings, or agreements (oral or written) between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). In the event of a conflict between this Agreement and any Order Schedule, this Agreement shall control for purposes of access to and use of the CLIKdata Services, CLIKdata CLIKid Platform, and CLIKdata Technology. Any inconsistent or additional terms on any related purchase order, confirmation, or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original but taken together, constituting one and the same instrument. Execution of a facsimile (e.g., .pdf or electronic signature) copy shall have the same force and effect as execution of an original and a facsimile signature shall be deemed an original and valid signature. No change, consent, or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, 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 in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect. Suppose this Agreement is required to be registered with any governmental authority. In that case, Client shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.