This Master Service Agreement (“Agreement”) is entered by
and between (i) TIPO Entertainment, Inc. d/b/a App
Studio, a Delaware corporation, or any App Studio Affiliate listed in Order
Form (“App Studio”), and (ii) the individual, company, or other legal entity
named as a customer in the Order Form (“Customer”), and (iii) the agency named
as the Customer’s agent (“Agency”) in the Order Form, if any. This Agreement
includes and incorporates each Order Form and each Statement of Work, if
applicable. An Order Form or Statement of Work may be amended or added at any
time if signed and dated by both parties.
BY (1) CLICKING OR CHECKING A BOX INDICATING ACCEPTANCE OR
(2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AND AGENCY
(IF APPLICABLE) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE
INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE CUSTOMER OR
AGENCY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH
ENTITY TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS
AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND
CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE
SERVICES.
1. DEFINITIONS
- “Affiliates” means
those entities under common control of an entity.
- “Authorized
User” means each of Customer’s employees, agents, and independent
contractors who are provided access protocols by Customer or App Studio.
- “Beta
Services” means the service(s) App Studio makes available to
Customer for testing purposes, subject to the terms and conditions
described in Exhibit A. Exhibit A is hereby incorporated by
reference.
- “Confidential
Information” means any trade secret, proprietary, or other nonpublic information of a party or its Affiliates
(the “Disclosing Party”), whether disclosed orally or in written or
digital media, that is identified as “confidential” or with a similar
legend at the time of such disclosure, or that the receiving party or its
Affiliates (the “Receiving Party”) knows or should reasonably have known
is the confidential or proprietary information of the Disclosing Party,
including but not limited to Disclosing Party’s customer lists, strategic
plans, network designs, relationship with vendors, pricing
(including as reflected in any Order Form hereunder) and internal business
operations shall be deemed Confidential Information without any
marking or further designation. Information will not constitute the
Disclosing Party’s Confidential Information if it: (1) is already known by
the Receiving Party without obligation of confidentiality; (2) is
independently developed by the Receiving Party without access to or use of
the Disclosing Party’s Confidential Information; (3) is publicly known
without breach of this Agreement; or (4) is lawfully received from a third
party without obligation of confidentiality.
- “Customer
Content” means the data, information, text, graphics,
photographs, images, video, audio, SKUs, return policies or other content
owned or licensed by Customer and provided to App Studio under this
Agreement or uploaded by Customer directly, including, product
descriptions, suggested sale price, and any other information identified
as the Customer Content, including, as applicable, sample products.
Customer Content includes images or videos that are modified by App Studio
for use in App Studio Platform video players, such as through the
performance of video-editing services. Customer Content does not include
the App Studio Platform video players that incorporate Customer Content or
derivative works of these App Studio Platform video players.
- “Customer
Trademark” means the Customer’s brands and all related
trademarks, service marks, trade dress, slogans, logos, taglines, labels
and other designs and product identifications.
- “Documentation” means
user guides, help information and other documentation regarding the App
Studio Platform and Beta Services provided by App Studio to Customer in
electronic or other form.
- “End
User” means those individuals/shoppers who access Customer
Content through the shoppable media links enabled by the App Studio
Platform.
- “App
Studio Platform” means App Studio’s suite of proprietary
web-based applications as described in a duly executed Order Form.
- “Order
Form” means an executed order form defining the scope of
Customer’s (or its Affiliate’s, if applicable) use of the App Studio
Platform, Beta Services, and other Services as applicable.
- “Performance
Data” means data collected from engagement with App Studio
Platform-enabled Customer Content, such as number of visits, time spent,
video completions, views of product information, clicks on the “add to
cart” button and retailer selection. Performance Data is the data that App
Studio collects while a user is using the App Studio Platform during the time period starting when they load App Studio Platform
to until they “checkout” with an online retailer.
- “Personal
Information” means personal information, personal data, or other
similar terms as defined by applicable Rules, or information that
otherwise relates to an identified or identifiable natural person.
- “Rules” means
all consumer protection and data privacy and protection laws, rules, and
regulations, applicable to the collection, use, sharing, or other
processing of Personal Information under this Agreement, as may be updated
or amended from time to time, including without limitation the General
Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), the
California Consumer Protection Act (the “CCPA”), and the Children’s Online
Privacy Protection Act of 1998 (“COPPA”). More information about App
Studio’s compliance with Rules is set forth in its Privacy Policy located
at www.appstudios.store/customerHome/tnc.
- “Sales
Insights” means the data analytics service leveraging retailer
and affiliate APIs relating to users who engage with App Studio
Platform-enabled Customer Content (“Sales Insights Data”), which is then
surfaced as data within the App Studio Platform. Sales Insights Data
is gathered after a consumer clicks to “checkout” of the App Studio
Platform and then buys the item in a reasonable amount of time from an
online retailer.
- “Services” means
the App Studio Platform, Sales Insights, and/or any other services listed
in any Order Form. Services shall be used by Customer in the
Territory/ies set forth in an executed Order
Form.
- “Territory” means
the United States unless otherwise set forth in an applicable Order
Form.
2. PROVISION OF SERVICES
- Access. App
Studio will provide Customer with access to the Services during the term
stated on the applicable Order Form. App Studio will provide to Customer
the necessary passwords, security protocols and policies, network links or
connections, and access protocols to allow Customer and its Authorized
Users to access the Services. Customer will be solely responsible for any
unauthorized access to, or use of, the Services, and notify App Studio
promptly of any such unauthorized use known to Customer.
- License. Subject
to the terms and conditions of this Agreement, App Studio grants to
Customer a non-exclusive, non-sublicensable, non-transferable (except as
permitted under Section 12.5) license during the Term to: (1)
access and use Services; (2) internally use and reproduce the
Documentation; and (3) grant Authorized Users the right to access and use
the Services. It is contemplated that Customer may permit its Affiliates
and their respective employees, contractors and agents to access Services
as Authorized Users subject to the terms of this Agreement, so long as Customer
is responsible for ensuring that such Affiliates’ Authorized Users comply
with the terms hereof (altogether “License”). Additionally, if any
such Affiliate executes an Order Form that incorporates and is subject to
this Agreement, Customer agrees that by executing such Order Form, such
Affiliate is agreeing to, and will be deemed to be joined as, a party
hereunder and will be referred to as a “Customer” hereunder mutatis
mutandis as if such Affiliate had executed this Agreement itself.
Unless otherwise set forth in any Order Form, the License is for use of
the Services in the United States and its territories and possessions.
- App
Studio Platform. Subject to the terms and conditions of this
Agreement, App Studio grants to Customer a non-exclusive,
non-sublicensable, non-transferable (except as permitted under Section
12.5) license to use and effect the display of the App Studio
Platform on Customer’s digital properties or the digital properties of third-parties as identified by Customer (“Permitted
Properties”). Notwithstanding the foregoing, Customer may sublicense the
foregoing rights solely as necessary to effect
the display of the App Studio Platform on the Permitted Properties.
Customer will not modify, remove, obscure or disable any element of App
Studio Platform.
- Sales
Insights. If the Services include the provision of Sales
Insights, App Studio grants to Customer a limited, non-sublicensable,
non-exclusive, non-transferable license to access the Sales Insights Data
in the form and in accordance with the Documentation or instructions
provided by App Studio.
- Restrictions. Except
as expressly permitted herein, Customer will not, and will not permit any
Authorized User or other party to, directly or indirectly: (1) allow any
third party who is not an Authorized User to access the Services, Beta
Services, or Documentation; (2) modify, adapt, alter or translate the
Services, Beta Services, or Documentation; (3) sublicense, lease, sell,
resell, rent, loan, distribute, transfer or otherwise allow the use of the
Services, Beta Services, or Documentation for the benefit of any unauthorized
third party (including, without limitation, for service bureau purposes);
(4) reverse engineer, decompile, disassemble, or otherwise derive or
determine or attempt to derive or determine the source code (or the
underlying ideas, algorithms, structure or organization) of the Services
or Beta Services, except as permitted by law; (5) interfere in any manner
with the operation of the Services or Beta Services or the hardware and
network used to operate the Services or Beta Services; (6) modify, copy or
make derivative works based on any part of the Services, Beta Services, or
Documentation; (7) access or use the Services or Beta Services to build a
similar or competitive product or service; (8) attempt to access the
Services or Beta Services through any unapproved interface; or (9)
otherwise use the Services or Beta Services in any manner inconsistent
with applicable law, the Documentation, or this Agreement.
- Additional
Services. Where the parties have agreed to App Studio’s provision
of additional or customized services (“Additional Services”), such
Additional Services will be described in a duly executed Order Form or an
attachment thereto which will include: (1) a description of the Additional
Services to be performed; (2) the schedule for performance of such
Additional Services; and (3) if separate from the fees for other Services,
the fees for the performance of the Additional Services. It is understood
that in connection with such Additional Services, App Studio may include
in its deliverables to Customer certain trend or other industry
information or data that is provided to Customer on a non-exclusive basis
and is the property of App Studio or its licensors. In the event of
a conflict between the terms and conditions of any Order Form and the
terms and conditions of this Agreement, the terms and conditions of this
Agreement will govern.
- Suspension
of App Studio Services. Customer acknowledges that App Studio may
suspend the delivery of the App Studio Platform or any component thereof
at any time, including without limitation as necessary to protect App
Studio’s systems from a denial-of-service attack, computer virus or any
other threat to the security of App Studio’s systems or data. App
Studio will provide Customer with reasonable notice in advance of any
planned Service suspensions. App Studio may also suspend delivery of Sales
Insights at any time if it is no longer able for any reason to provide
said service. In that case, App Studio will provide Customer with as much
notice as reasonably practical.
3. INTELLECTUAL PROPERTY
- Ownership. The
Services (including without limitation the Sales Insights Data), Beta
Services, Documentation, and all worldwide intellectual property rights in
each of the foregoing, are the exclusive property of App Studio and/or its
suppliers and licensors. All rights in and to the Services, Beta Services,
Sales Insights Data, and Documentation not expressly granted to Customer
in this Agreement are reserved by App Studio and its suppliers and
licensors. Except as expressly set forth herein, no express or implied
license or right of any kind is granted to Customer regarding the
Services, Beta Services, Sales Insights Data, Documentation, or any part
thereof. Except as set forth herein, Customer shall own all right,
title, and interest in Customer Content and Performance Data.
- Customer
Content; Performance Data. Customer grants App Studio
a non-exclusive, royalty-free and fully paid up license to use, reproduce,
distribute, publicly display, publicly perform, modify and create
derivative works of the Customer Content and Performance Data for the
purpose of: (1) providing Services; (2) for App Studio’s internal and
diagnostic purposes (e.g., to develop, provide and improve the Services
and future App Studio products and services); and (3) only with respect to
Performance Data, surfacing it solely in de-identified and aggregate
form that does not identify Customer or its End Users (“Anonymized
Data”) . All uses of the Customer Trademarks will be subject to the
Customer’s trademark guidelines as made available to App Studio. All
goodwill associated with the Customer Trademarks will inure solely to the
benefit of the Customer. The Customer Content and Customer Trademarks and
all worldwide intellectual property rights in and to such content and
marks shall be the exclusive property of Customer. All rights in and to
the Customer Content and Customer Trademarks not expressly granted to App
Studio in this Agreement are reserved by Customer.
- Permitted
Properties. As between the parties, the Permitted Properties and
all content contained therein, apart from the App Studio Platform licensed
hereunder, will remain the exclusive responsibility and/or property of
Customer.
- Feedback. Customer
hereby grants to App Studio a royalty-free, worldwide, transferable,
sublicensable, irrevocable, perpetual license to use or incorporate into
the Services any suggestions, enhancement requests, recommendations or
other feedback provided by Customer, including Authorized Users, relating
to the Services. This Section 3 shall survive termination of this
Agreement.
4. FEES AND PAYMENT
- Fees. Customer
will pay App Studio the fees described on the applicable Order Form.
Unless otherwise stated in the Order Form, payments shall be made in USD
no later than thirty (30) days after the date of invoice. Customer
will provide App Studio with complete, accurate and up-to-date Customer
billing and contact information. App Studio reserves the right to
suspend provision of the Services if fees are past due more than thirty
(30) days.
- Taxes. All
fees owed by Customer in connection with this Agreement are exclusive of,
and Customer will pay, all sales, use, excise and other taxes and
applicable export and import fees, customs duties and similar charges that
may be levied upon Customer in connection with this Agreement, except for
employment taxes for App Studio employees and taxes based on App Studio’s
net income.
- Interest. Any
amounts not paid when due will bear interest at the rate of one- and
one-half percent (1.5%) per month, or the maximum legal rate if less, from
the due date until paid.
5. CUSTOMER RESPONSIBILITIES
- Customer
Warranty. Customer represents and warrants that the Customer
Content and the use thereof by or on behalf of App Studio as contemplated
herein will not; (1) be deceptive, defamatory, obscene, pornographic or
unlawful; (2) contain any viruses, worms or other malicious computer
programming codes intended to damage App Studio’s system or data; or (3)
otherwise violate the rights of a third party. App Studio is not obligated
to back up any Customer Content; Customer is solely responsible for
creating backup copies of any Customer Content at Customer’s sole cost and
expense.
- Data
and Security. Customer and its Authorized Users will have access
to the Customer Content and will be responsible for all changes to and/or
deletions of Customer Content and the security of all passwords and other
access protocols required in order to access the
Services. Customer will have the sole responsibility for the accuracy,
quality, integrity, legality, reliability, and appropriateness of all
Customer Content.
6. WARRANTIES AND DISCLAIMERS
- Representations
of Both Parties. Each party represents and warrants to the other
that: (1) it has the full right, power and authority to enter into this
Agreement and perform its obligations hereunder; (2) this Agreement
constitutes a legal, valid and binding obligation of it, enforceable
against it in accordance with the terms of this Agreement, and (3) its
execution and delivery of this Agreement, and its performance hereunder,
will not violate or conflict with any other contract or agreement to which
it is a party.
- Limited
Warranty. App Studio warrants to Customer that the Services will
substantially conform to the Documentation. Provided that Customer
notifies App Studio in writing of any breach of the foregoing warranty
during the Term, App Studio will, as Customer’s sole and exclusive remedy,
use commercially reasonable efforts to correct the defect.
- Disclaimer. EXCEPT
AS EXPRESSLY PROVIDED IN SECTION 6.2 , AND TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED
“AS IS,” AND APP STUDIO MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE,
MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES
OR DOCUMENTATION OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY
APP STUDIO. APP STUDIO DOES NOT PROVIDE ANY WARRANTIES REGARDING THE
ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES AND APP STUDIO
SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE
FAILURES AND ANY OTHER PROBLEMS ARISING FROM CUSTOMER’S USE OF THE
INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE DISCLAIMERS
CONTIANED IN THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN APP
STUDIO AND CUSTOMER, AND APP STUDIO’S PRICING REFLECTS THIS ALLOCATION OF
RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN. APP STUDIO DOES NOT
WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE
SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
- Special
Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF
BUSINESS OR DATA AND SIMILAR CLAIMS, REGARDLESS OF THE CAUSE OF ACTION OR
THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF
SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
- LIMITATION.
THE MAXIMUM LIABILITY OF EACH PARTY ARISING OUT OF OR IN ANY WAY CONNECTED
TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO APP
STUDIO DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR
OCCURRENCE GIVING RISE TO SUCH LIABILITY.
- Basis
of the Bargain. The parties agree that the limitations of
liability set forth in this Section 7 will survive and continue in
full force and effect despite any failure of consideration or of an
exclusive remedy. The parties acknowledge that the prices have been set and this Agreement entered into in reliance upon
these limitations of liability and that all such limitations form an
essential basis of the bargain between the parties. This Section 7
shall survive termination of this Agreement.
8. CONFIDENTIALITY
- Confidential
Information. The Receiving Party agrees: (1) not to use or
disclose any Confidential Information except as expressly authorized by
this Agreement; (2) to protect the Disclosing Party’s Confidential
Information using the same degree of care that it uses with respect to its
own confidential information, but in no event with less than a reasonable
degree of care; (3) to hold the Disclosing Party’s Confidential
Information in strict confidence; and (4) to limit access to the
Disclosing Party’s Confidential Information to those of its employees,
agents or Authorized Users having a need to know and who are bound by
confidentiality obligations at least as restrictive as those contained
herein.
- Compelled
Disclosure. Nothing herein shall prevent the Receiving Party from
disclosing any Confidential Information or Personal Information as
necessary pursuant to any court order or any legal, regulatory, law
enforcement or similar requirement or investigation; provided, prior to
any such disclosure, the Receiving Party shall use reasonable efforts to
(1) promptly notify the Disclosing Party in writing of such requirement to
disclose and (2) cooperate with the Disclosing Party in protecting against
or minimizing any such disclosure or obtaining a protective order.
- Return
or Destruction of Confidential Information. Upon written request
by the Disclosing Party, a Receiving Party shall destroy or return (as
instructed by the Disclosing Party) all Confidential Information in its
possession, except solely to the extent such Confidential Information may
be deemed reasonably necessary to document the Receiving Party’s
performance or compliance with this Agreement. Nothing in this
Section 8.3 shall require the destruction or alteration of computer
back-up tapes or similar storage made in the ordinary course of the
Receiving Party's business that contain the Disclosing Party's
Confidential Information, provided that Receiving Party shall continue to
comply with its obligations herein with respect to such Confidential
Information. This Section 8 shall survive termination of this Agreement.
9. PERSONAL INFORMATION, DATA PROTECTION AND SECURITY
- Personal
Information. Customer agrees that in performing its obligations hereunder,
App Studio may process Personal Information related to Customer’s
employees, representatives, contractors, and End Users. App Studio agrees
to process any such Personal Information in accordance with applicable
Rules and this Agreement. Customer represents and warrants that it has
provided all necessary notices and obtained all necessary consents
required to provide Personal Information to App Studio pursuant to this
Agreement, and that Customer has complied and shall continue to comply
with all applicable Rules with respect to any Personal Information it
makes available to App Studio in connection with this Agreement.
- Security
Measures. App Studio will implement and maintain reasonable
security procedures and practices appropriate to the nature of the
Personal Information within App Studio’s control and take such other
actions as are necessary to maintain conformance with high industry
standards of security.
- Notification
of Data Breach and Incident Response. In the event an
unauthorized third- party gains access to, alters, exfiltrates, or
otherwise compromises the security of Personal Information (a “data
breach”) held by App Studio, App Studio shall promptly notify Customer and
provide, to the extent possible, details of the data breach including the
steps being taken to mitigate potential risks and harm. Notification by App
Studio of a data breach does not represent any acknowledgement or
acceptance by App Studio of fault or liability with respect to the data
breach.
10. INDEMNIFICATION
- By
App Studio. App Studio will defend at its expense any suit
brought against Customer, and will pay any settlement App Studio makes or
approves, or any damages finally awarded in such suit, insofar as such
suit is based on a claim by any third party alleging that the Services
misappropriate any trade secret recognized under the Uniform Trade Secrets
Act or infringes any copyright or United States patent issued as of the
Effective Date. If any portion of the Services becomes, or in App Studio’s
opinion is likely to become, the subject of a claim of infringement, App
Studio may, at App Studio’s option: (1) procure for Customer the right to
continue using the Services; (2) replace the Services with non-infringing
software or services which do not materially impair the functionality of
the Services; (3) modify the Services so that they become non-infringing;
or (4) terminate this Agreement and refund any unused prepaid fees for the
remainder of the term then in effect, and, upon such termination, Customer
will immediately cease all use of the Services and Documentation.
Notwithstanding the foregoing, App Studio will have no obligation under
this Section 10.1 or otherwise with respect to any infringement
claim based upon (5) any use of the Services not in accordance with this
Agreement or as specified in the Documentation; (6) any use of the
Services in combination with other products, equipment, software or data
not supplied by App Studio; or (7) any modification of the Services by any
person other than App Studio or its authorized agents (collectively,
the “Exclusions” and each, an “Exclusion”).
This Section 10.1 states the sole and exclusive remedy of Customer
and the entire liability of App Studio, or any of the officers, directors,
employees, shareholders, contractors or representatives of the foregoing,
for infringement claims and actions.
- By
Customer. Customer will defend at its expense and advance
sufficient fees and costs to App Studio in connection with any third party
suit brought against App Studio, and will pay any settlement Customer
makes or approves, or any damages finally awarded in such suit, insofar as
such suit is based on a claim arising out of or relating to (1) the
Customer Content misappropriates any trade secret recognized under the Uniform
Trade Secrets Act or infringes any copyright or United States patent
or (2) an Exclusion. This Section 10.2 states the sole and
exclusive remedy of App Studio and the entire liability of Customer, or
any of the officers, directors, employees, shareholders, contractors or
representatives of the foregoing, for the claims and actions described
herein.
- Procedure. The
indemnifying party’s obligations as set forth above are expressly
conditioned upon each of the foregoing: (1) the indemnified party will
promptly notify the indemnifying party in writing of any threatened or
actual claim or suit; (2) the indemnifying party will have sole control of
the defense or settlement of any claim or suit;
and (3) the indemnified party will cooperate with the indemnifying party
to facilitate the settlement or defense of any
claim or suit.
11. TERM
- Term. This
Agreement will begin on the Effective Date and continue in full force and
effect as long as any such Order Form remains in
effect. This Agreement will remain in effect for two (2) years from
the expiration or termination of the final Order Form unless terminated by
either party earlier under the terms hereof (the “Term”). Any termination
of this Agreement constitutes a termination of all Order Form(s).
Notwithstanding the foregoing, any provisions that by their nature are
meant to survive the Term shall survive the termination or expiration
hereof.
- Termination.
Either party may terminate this Agreement for material breach by providing
the other party no less than thirty (30) days’ written notice specifying
the nature of the alleged breach and providing such party a chance to
cure. If no cure is made within the 30-day notice period, the party
alleging the breach may terminate this Agreement with no further
notice.
12. MISCELLANEOUS
- Governing
Law and Venue. This Agreement and any action related thereto will
be governed and interpreted by and under the laws of the State of New
York, without giving effect to any conflicts of laws principles. Customer
hereby expressly consents to exclusive personal jurisdiction and venue in
the state and federal courts for the county in which App Studio’s
principal place of business is located for any lawsuit arising from or
relating to this Agreement. The United Nations Convention on Contracts for
the International Sale of Goods does not apply to this Agreement.
In the event of any dispute, the prevailing party will be entitled to
collect from the other the fees and costs of litigation, including but not
limited to attorneys’ fees and expenses.
- Export. Customer
agrees not to export, reexport, or transfer, directly or indirectly, any
U.S. technical data acquired from App Studio, or any products utilizing
such data, in violation of the United States export laws or regulations.
- Severability. If
any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision
will be deemed modified so that it is valid and enforceable to the maximum
extent permitted by law.
- Waiver. Any
waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.
- No
Assignment. Except as is necessary in connection with providing
Services, neither party will assign, subcontract, delegate, or otherwise
transfer this Agreement, or its rights and obligations herein, without
obtaining the prior written consent of the other party, and any attempted
assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void; provided, however, that App Studio may
assign this Agreement in connection with a merger, acquisition,
reorganization or sale of all or substantially all of its assets, other
operation of law, or to a App Studio Affiliate without any consent of
Customer. Subject to the foregoing, the terms of this Agreement will be
binding upon the parties and their respective successors and permitted
assigns.
- Force
Majeure. Any delay in the performance of any duties or
obligations of either party (except the payment of money owed) will not be
considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire,
earthquake, flood, pandemic, health crisis or any other event beyond
the control of such party, provided that such party uses reasonable
efforts, under the circumstances, to notify the other party of the cause
of such delay and to resume performance as soon as possible.
- Independent
Contractors. The relationship of App Studio to Customer is that
of an independent contractor, and neither party is an agent or partner of
the other. Customer will not have, and will not
represent to any third party that it has, any authority to act on behalf
of App Studio.
- Notices. Each
party must deliver all notices or other communications required or
permitted under this Agreement in writing by (1) a nationally recognized
express mail service or (2) email. Notice by express mail service will be
effective upon receipt or refusal of delivery. Notice by email will be
effective when sent even if the sender receives a machine-generated
message that delivery has failed, provided that the sender sends a
tangible copy of the notice by express mail service with ten business days
of sending the email message. Notice shall be delivered as set forth on
the first page of this Agreement or as may be reflected in any Order
Form:
- Counterparts. This
Agreement and other documents to be delivered pursuant to this Agreement
may be executed in one or more counterparts, each of which will be deemed
to be an original copy and all of which, when taken together, will be
deemed to constitute one and the same agreement.
- Publicity. During
and after the Term (unless terminated by Customer due to App Studio’s
breach thereof), App Studio shall have the right to reference Customer as
a customer of App Studio’s (e.g., on the App Studio website and marketing
materials), including using a Customer Trademark subject to Customer’s
written guidelines as provided to App Studio for such purposes, and
Customer will make an appropriate representative available to answer
questions about the Services from App Studio’s potential clients. Customer
will further allow App Studio to create and use a public case study during
or after the Term, and Customer will agree to participate in at least one
press moment with App Studio during or after the Term.
- Entire
Agreement. Except as may be set forth in any applicable policy
or agreement concerning data, privacy or security, this Agreement is the
complete and exclusive agreement of the parties with respect to the
subject matters hereof and supersedes and merges all prior discussions
between the parties with respect to such subject matters. No modification
of or amendment to this Agreement, or any waiver of any rights under this
Agreement, will be effective unless in writing and signed by an authorized
signatory of Customer and App Studio.
Exhibit A – Beta Services
- Supplemental
Terms. Notwithstanding anything to the contrary in the Agreement,
the following terms shall apply to Customer’s use of the Beta Services:
- License. The
particular features and functionalities of Beta
Services will be described in an Order Form executed by the parties.
Subject to the terms and conditions of the Agreement, the relevant Order
Form, and this Exhibit A, App Studio grants to Customer a limited,
non-sublicensable, nonexclusive, nontransferable license to use the Beta
Services, in accordance with the instructions supplied by App Studio.
- Access
and Restrictions. Customer will only disclose the Beta Services
and the information, reports, data, or other deliverables or work product
accessed by or provided to Customer in connection with the Beta Services
(collectively such information, reports, data, or other deliverables or
work product, the “Beta Service Reports”) to those of its Authorized
Users as are necessary for the use expressly and unambiguously licensed
hereunder, and only after such Authorized Users have agreed in writing to
be bound by confidentiality obligations no less restrictive than those in
this Agreement. Customer shall not, without the prior written
consent of App Studio, disclose or otherwise make available the Beta
Service Reports, Beta Services or copies thereof to any third party. The
Beta Services and Beta Service Reports shall be (1) used for Customer’s
internal use only, and (2) App Studio’s Confidential Information. The
Beta Service Reports are not Performance Data.
- Feedback. App
Studio makes the Beta Services available to Customer for purposes of
evaluation and feedback without any compensation or reimbursement of any
kind from App Studio. Customer hereby agrees to provide such feedback as
reasonably requested by App Studio and acknowledges that App Studio owns
any feedback provided. Customer grants to App Studio, if for any reason
it is further needed, a perpetual, non-revocable, royalty-free worldwide
license to use and/or incorporate such feedback into any App Studio
product or service (including the Beta Services) at any time at the sole
discretion of App Studio.
- Modification
and Termination. App Studio reserves the right to modify or
discontinue any aspect of the Beta Services at any time in its sole
discretion, for any reason, with or without notice and without liability
to Customer. App Studio reserves the right to immediately suspend or
terminate Customer’s access to and use of the Services (1) if Customer
breaches the terms of the Agreement, this Exhibit B, or any applicable
Third-Party Software terms; or (2) if any act or omission of App Studio’s
third party licensors negatively impacts App Studio’s ability to provide
the Beta Services to Customer; or (3) in its sole discretion at any time.
With respect to each Beta Service, these terms will be in effect as of
the date of execution of the applicable Order Form and will continue in
force until the earlier of (4) the expiration or termination of the
Agreement or of the Order Form(s) relating to Beta Service(s), (5) App
Studio’s suspension or termination of the Beta Service(s) in accordance
with this Section, or (6) the date App Studio, in its sole discretion,
makes such Beta Service generally publicly available. If App Studio makes
the Beta Service(s) generally available, they will be governed by the
same terms and conditions as other “Services” under the Agreement (unless
otherwise agreed in writing by the parties) and any documentation related
to the Beta Services will be “Documentation” under the Agreement. App
Studio may in its sole discretion choose to make continued provision of
such Services subject to additional fees.
- Warranties. The
parties acknowledge that the Beta Services are experimental in nature and
that the Beta Services are provided “AS IS” and may not be functional on
every machine or in every environment. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, APP STUDIO MAKES NO (AND HEREBY DISCLAIMS ALL)
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR
PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE
THE BETA SERVICES OR DOCUMENTATION OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED TO CUSTOMER BY APP STUDIO HEREUNDER. APP STUDIO DOES NOT WARRANT
THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE BETA SERVICES
WILL BE UNINTERRUPTED OR ERROR-FREE. USE OF THE BETA SERVICES IS AT
CUSTOMER’S OWN RISK.
- Indemnification. Customer
will defend at its expense any suit brought against App Studio, and will
pay any settlement Customer makes or approves, or any damages finally
awarded in such suit, insofar as such suit is based on a claim arising
out of or relating to (1) Customer’s use of the Beta Services, and (2)
Customer’s breach or alleged breach of its obligations under this Exhibit
A.
- Limitation
on Liability. IN NO EVENT SHALL APP STUDIO BE LIABLE FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL LOSS, EXEMPLARY OR
OTHER DAMAGES RELATED TO OR ARISING FROM THIS EXHIBIT B, AND/OR WHETHER
DIRECT OR INDIRECT: (1) LOSS OF DATA, (2) LOSS OF INCOME, (3) LOSS OF
OPPORTUNITY, (4) LOST PROFITS, AND (5) COSTS OF RECOVERY OR ANY OTHER
DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER
OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF
STATUTE, OR OTHERWISE, AND WHETHER OR NOT APP STUDIO HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, APP STUDIO’s LIABILITY HEREUNDER IS LIMITED TO $50.00.