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Master Service and License Agreement
1. Order Forms. The order forms, schedules, or statements of work attached to this Agreement (each, an “Order Form”) describe, among other things, the Services (as herein defined) to be provided to Client by Curalate. The Services described on the Order Forms are governed by the terms and conditions of this Agreement, but to the extent of a conflict between an Order Form and this Agreement, the Order Form shall control.
2. Definitions. Capitalized terms used in this Agreement and the Order Forms have the following meanings:
a. “Client Content” means any proprietary information provided by Client to Curalate or any third party in connection with Client’s use of the Services.
b. “Curalate Data” means all data generated, stored or collected by Curalate that is not Client Content, Social Site Content, Third Party Content, or Results.
c. “Curalate IP” means the Platform (in source and object forms), and Curalate’s other proprietary technology, including software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Curalate or licensed to Curalate from a third party) and also including any derivatives, improvements, enhancements or extensions of Curalate IP conceived, reduced to practice, or developed during the term of this Agreement.
d. “Personally Identifiable Information” or “PII” means information that can identify any individual, including an individual’s name, address, telephone number, e-mail address, credit or debit card information, social security number or other similar specific factual identifying information, regardless of the media on which such information is stored. PII shall not be deemed to include any personally identifiable information that is publicly available on a Social Site or otherwise.
e. “Platform” means Curalate’s proprietary software platform that Curalate provides remote access to and use of as part of the Services. The Platform includes without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein.
g. ‘Results” means the information, data and other content that is derived from processing Client Content through the Services.
h. “Services” means providing Client with access to certain features and functionalities of the Platform, including technical support and maintenance, and any other services as more particularly described in each Order Form attached to this Agreement.
i. “Social Site” means Pinterest, Facebook, Instagram, Tumblr, and any other website that solicits content from users and make such content available for re-syndication and/or publication.
j. “Social Site Content” means any Social Site content, including online navigational and behavioral data, collected, aggregated, processed or otherwise managed by Curalate or the Platform for or on behalf of Client in connection with this Agreement.
k. “Third Party Content” means all content submitted by third parties to Client through the Platform or directly.
3. Payment. Client shall pay Curalate the fees set forth in each Order Form (“Fees”). All fees charged for Services are exclusive of all taxes and similar fees now in force, enacted or imposed in the future on the transaction and/or the delivery of Services, all of which Client will be responsible for and will pay in full, except for taxes based solely on Curalate’s net income. Client shall pay the Fees payable to Curalate hereunder within 30 days of receipt of invoices submitted by Curalate. Any unpaid and uncontested balance due and owing will incur a penalty charge of 1% per month. In addition, if any invoice remains unpaid for more than 30 days, Curalate may suspend Services after giving 10 days’ written notice to Client, until Curalate has been paid all amounts due. In the event of any dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein, and Client shall notify Curalate in writing of the reason for Client’s dispute.
4. Trials. Curalate may offer Client the ability to access and use the Platform for a limited trial period at no charge ("Trial "). Curalate may suspend, terminate, or discontinue the Trial at any time and for any reason, in Curalate’s sole discretion.
5. Confidential Information. During the course of the performance of the Services, each party may be given access to information that (i) relates to the other’s past, present, and future research, development, business activities, products, services, pricing, and technical knowledge, and (ii) has been identified as confidential or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself (“Confidential Information”). In connection therewith, the following subsections shall apply:
a. Neither party shall disclose or use the Confidential Information of the other party except as expressly provided herein or as required in connection with the performance of the Services;
b. Each party agrees to protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but with no less than a reasonable degree of care;
c. The Confidential Information may not be copied or reproduced without the discloser’s prior written consent;
d. Each party shall return to the other or destroy all Confidential Information made available hereunder, including copies thereof, whether contained in notes, documents, computer programs, or other materials upon the first to occur of (a) completion of the Services or (b) request by the discloser. However, Curalate may retain, subject to the terms of this Section, copies of the Confidential Information pursuant to an automated archival process used in the ordinary course of business. Each party will, within five days of written request from the other party, provide the requesting party with a certificate signed by an officer, verifying that all such materials have been returned or destroyed;
e. Nothing in this Agreement shall prohibit or limit either party’s use or disclosure of information (including, but not limited to ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without obligation of confidence, (ii) independently developed by it without any use of the other party’s Confidential Information, (iii) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information, or (iv) which is or becomes publicly available through no breach of this Agreement; and
f. If either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, it shall provide prompt notice to the other of such receipt, and shall cooperate at the other party’s expense, with any efforts to prevent the disclosure of the Confidential Information. The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to the extent required by applicable law.
6. Data Protection Representations and Warranties. With respect to Personally Identifiable Information, Curalate agrees, covenants, represents and warrants that:
a. It shall take, at its sole expense, all appropriate technical and organizational measures: (i) against accidental loss, destruction or damage to, or unlawful disclosure of the Personally Identifiable Information; (ii) to secure the confidentiality of the Personally Identifiable Information; and (iii) to prevent unauthorized or unlawful processing of Personally Identifiable Information;
b. It will, upon written request from Client from time to time, inform Client of the security measures it has taken and will at its own cost implement any further steps that are necessary to ensure data security;
c. It shall not transfer any Personally Identifiable Information to anywhere where such transfer violates any laws or regulations in relation thereto;
d. All Personally Identifiable Information provided shall be kept confidential pursuant to Section 4 of this Agreement;
e. It shall use Personally Identifiable Information solely for the purpose for which it was provided and only in accordance with the lawful instructions of Client;
f. It shall not use the Personally Identifiable Information, whether in combination with other Information or otherwise, for its own purposes or the benefit of others;
g. It shall comply with all applicable laws and legislation, including without limitation, all applicable local laws, rules, and regulations to which Curalate is required to, or has voluntarily agreed to, comply relating to the protection of Personally Identifiable Information (“Privacy Laws”), in relation to Personally Identifiable Information protection;
i. It shall keep Personally Identifiable Information only for so long as is essential for the purposes of the Agreement and the applicable Order Form, and as required or limited by laws in the applicable territory;
j. Upon Client’s request, it shall delete any and all Personally Identifiable Information;
k. It shall not sell, rent, display, distribute, or otherwise make available any Personally Identifiable Information to any other party without the prior written consent of Client;
l. It shall use adequate technology and well-defined operational practices to help ensure that Personally Identifiable Information is processed promptly, accurately, and in confidence;
m. If it becomes aware of a security breach, or a failure to strictly comply with Privacy Laws or instructions from Client relating to Personally Identifiable Information, Curalate shall promptly notify Client in writing;
n. It shall take all reasonable steps, at its own expense, to remedy the breach or violation that arises from Curalate’s acts or omissions;
o. It shall promptly notify Client if it receives any legal or regulatory action related to Personally Identifiable Information and agrees to cooperate with Client in investigating and responding to any complaint or inquiry relating to Personally Identifiable Information; and
p. It shall, upon request, promptly assist Client in disclosing to the subject of Personally Identifiable Information what it does with such information and will provide details of Personally Identifiable Information, as may be required by the applicable law.
7. General Representations and Warranties; Disclaimer.
c. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CURALATE EXPRESSLY DISCLAIMS AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY CLIENT CONTENT, SOCIAL SITE CONTENT OR THIRD PARTY CONTENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL TRIAL SERVICES, SERVICES DESIGNATED AS “BETA”, AND SERVICES PROVIDED AT NO CHARGE ARE PROVIDED “AS-IS” AND CURALATE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUCH SERVICES.
8. Platform License; Restrictions.
a. Subject to the terms, conditions, and limitations of this Agreement, Curalate grants to Client, under the Curalate IP, a limited and non-exclusive right and license to access and operate the Platform during the term of each applicable Order Form solely for the purpose of Client’s internal business operations.
b. Client will access the Platform using username and passwords. User names and passwords will only be issued to employees of Client or third parties that Curalate approves in writing. Client shall immediately notify Curalate of any unauthorized disclosure or use of the passwords or access to the Platform or the need to deactivate passwords and provide to Curalate its reasonable cooperation to remedy such unauthorized disclosure or use. Passwords are subject to cancellation or suspension by Curalate upon the misuse of passwords by Client.
c. Curalate shall have the perpetual, royalty-free, transferrable right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client, whether verbally or in writing, relating to the Curalate IP.
d. Client shall not, and shall not allow third parties, to: (a) sublicense or distribute the Curalate IP in any manner; (b) create derivative works of the Curalate IP; (c) reproduce or copy the Curalate IP in any manner; (d) rent, lease, or sell the Curalate IP; (e) modify, decompile, disassemble, or otherwise reverse engineer the Curalate IP; (f) use the Curalate IP for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (g) transfer the Curalate IP or the limited license granted herein to another party. Upon termination of this Agreement, all license rights to the Platform shall terminate. All rights to the Platform and the Curalate IP not expressly granted herein are reserved by Curalate.
e. Curalate further grants Client a limited, non-exclusive, perpetual right to access and use any reports provided by Curalate to Client. Client shall conspicuously attribute any reports generated through use of the Platform to Curalate as a source of such reports.
9. Infrastructure; Platform Availability; Support. Curalate may host the Platform using its own infrastructure or it may engage a third party to host the Platform on its behalf. In either case, the Platform will be available in accordance with the service level agreement set forth in each Order Form. Curalate will provide Client with a reasonable amount of maintenance and support regarding use of the Platform. Updates to the Platform will be provided at no charge to Client. Certain major functional updates or enhancements may, however, in Curalate’s discretion, be considered new products that will be made available to Client at an additional charge. Scheduled system maintenance will take place during a normal maintenance window during minimal-traffic times. During such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. Curalate will use commercially reasonable efforts to notify Client of the emergency maintenance event and promptly remedy any system failure and restore the Platform.
10. Ownership; License to Client Content and Third Party Content. Client owns all Client Content and Results. Third Party Content is owned or licensed by the third party that submits such content to Client directly or through the Platform. Client grants Curalate a limited, non-exclusive, royalty-free, revocable, world-wide license to use, display and distribute Client Content and Third Party Content as necessary to provide, improve, and monitor the Services for the duration of this Agreement. Curalate owns all Curalate Data and may use Curalate Data and publicly available Social Site Content for statistical, analytical, and any other lawful purposes.
11. Term and Termination. This Agreement is effective as of the Effective Date and will remain in effect so long as any Order Form remains in effect, unless otherwise terminated as provided herein. If the Agreement terminates as a result of there being no active Order Forms, the Agreement will automatically become effective again in the event that a new Order Form is entered into by and between the parties. If either party materially breaches a material provision of this Agreement, the other party may terminate this Agreement upon 30 days advance written notice to the other party unless the other party cures the breach within 10 days of receipt of such notice of material breach. Sections 5, 6, 10, 12, 13, 15, and 19 shall survive termination of this Agreement and any remedies for breach of the Agreement shall survive termination or expiration.
12. Indemnification. Each party agrees to defend the other party, its corporate affiliates, and their respective agents, officers, directors, shareholders, partners, employees and licensees, and each of their successors and permitted assigns (collectively, the “Indemnified Parties”) and hold each of them harmless from and against any and all claims and demands (collectively, “Claims”), brought by a third party based upon or arising in any manner, directly or indirectly, out of or in connection with such party’s breach of its representations, warranties or obligations as provided in this Agreement. The indemnifying party shall pay all damages finally awarded or paid in settlement of any such Claims. The Indemnified Parties must notify the indemnifying party promptly in writing of any claim for indemnification hereunder, and provide, at the indemnifying party’s expense (to the extent of out-of-pocket expenses only), all reasonably necessary assistance, information and authority to allow the indemnifying party to control the defense and settlement of such claim; provided that the failure of the Indemnified Parties to promptly inform the indemnifying party of any Claim shall not excuse the indemnifying party of its obligations hereunder except to the extent such failure materially prejudices the indemnifying party. Notwithstanding the foregoing, the indemnifying party shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without the Indemnified party’s prior written consent, which consent shall not be unreasonably withheld or delayed. The Indemnified party may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense.
13. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL DAMAGES (INCLUDING LOST PROFITS) OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 3 (PAYMENT). EXCEPT FOR CLAIMS CONCERNING INDEMNIFICATION, CONFIDENTIALITY, AND CURALATE’S OWNERSHIP OF INTELLECTUAL PROPERTY, EACH PARTY’S TOTAL LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, AND NOT WITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID OR PAYABLE TO CURALATE BY CLIENT DURING THE SIX MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
14. Insurance. Curalate will obtain and at all times during the term of this Agreement maintain at its own expense, the minimum insurance coverages set forth below.
a. Statutory workers compensation insurance and employer’s liability insurance with limits of not less than $500,000.
b. Commercial General Liability insurance with limits of not less than $1,000,000 each occurrence, $2,000,000 general aggregate.
c. Professional Liability/Errors & Omissions insurance with limits of not less than $1,000,000 each occurrence, $1,000,000 general aggregate.
15. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and delivered: (i) personally; (ii) by first class mail, postage prepaid, certified and return receipt requested; (iii) via a nationally recognized overnight courier; (iv) via email; or (v) via facsimile, to the applicable party at the addresses set forth above, unless, by notice, a party changes or supplements the addressee and addresses for giving notice. All notices shall be deemed given on the date personally delivered or 5 days after deposit in the mail as specified.
16. Independent Contractors. Neither party has any ability to bind the other party to any agreements or other obligations and will not attempt to do so. This Agreement does not grant any party any right or authority to, and neither party will make any statements, representations, or commitments on behalf of the other party. Curalate and Client are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.
17. Publicity. Curalate may reproduce and display Client’s logos, trademarks, trade names and similar identifying material on Curalate’s website and in Curalate’s marketing materials for the purpose of referring to Client as a customer of Curalate.
18. Force Majeure. Except for the obligation to pay money, neither party shall be liable for any delays or failures in performance to the extent such delays are caused by labor strikes, war, civil unrest, natural disasters, or other similar circumstances beyond its control.
19. Assignment. Neither party may assign its rights or obligations under this Agreement without the advance written consent of the other party, except in the event of a merger or a sale involving all, or substantially all, of a party’s stock or assets. Any attempted assignment in violation hereof shall be voidable at the other party’s discretion.
20. Miscellaneous. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement, an Order Form or the scope of the Services will be effective unless in writing and signed by both parties. Curalate shall have no obligation to commence work in connection with any change until the fee and/or schedule impact of the change is agreed upon by the parties in writing. Curalate and Client shall use good faith efforts to negotiate such changes expeditiously. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement (along with any Order Forms) constitutes the entire, complete and final understanding and agreement by and between the parties with respect to the subject matter of this Agreement, and supersedes any prior oral or written agreements with respect to the subject of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of laws provisions thereof. Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in Philadelphia, Pennsylvania and the parties agree to submit to the exclusive personal jurisdiction of such courts.
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