RECITALS
WHEREAS, Service Provider provides various services including Mobile Page Management solution ("MPM") that offers a customized mobile page creation and management; andWHEREAS, Client wishes to contract for use of MPM to access and utilize the Service Provider's software over the Internet and is retaining Service Provider to provide a solution ("Page Builder Solution") based on MPM; and
WHEREAS, Service Provider owns and has rights to certain Confidential Information (as defined below) and trade secrets relating to its business, clients, and MPM and related services; and
NOW, THEREFORE, in consideration of the monetary compensation and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Client hereby agree as follows.
SECTION 1
PAGE BUILDER SOLUTION
1.1 Mobile Landing Page Management System.
Service Provider will provide the Client with access to Service Provider's proprietary web-based ("MPM") system to deliver a Page Builder Solution for the Client according to the specification and delivery dates provided in the SOW.
1.2 Limited License. In accordance with this Agreement, Service Provider hereby grants to Client a limited, non-exclusive, non-transferable license to use Service Provider's MPM system and Page Builder Solution to create and manage web pages, websites and loyalty programs for Client and Client's authorized customers (the "Client Pages"). Client acknowledges and agrees that the purpose of this license is to be used only for providing the Client with the ability to offer mobile content management services directly to the customers/clients of the Client. Client may not use MPM system and Page Builder Solution for any other purpose, nor may the Client link or combine the MPM system and Page Builder Solution with any other programs, modify, rent, release, lend, sublicense or otherwise redistribute the MPM system and Page Builder Solution, in whole or in part, to any other person or entity.
1.3 Customization of Client Pages. Client and Client's authorized customers may use the MPM system in accordance with this Agreement to customize their Client Pages with any graphics, trademarks, logos, designs, copyrighted material, text, and other materials and information owned by Client or Client's authorized customers, or licensed to use by Client or by Client's authorized customers (collectively, "Client Intellectual Property").
1.4 Server. Client understands and agrees that: (i) Service Provider's servers and its authorized affiliates will host the Page Builder Solution and the Client Pages. Client will access and utilize the Service Provider's software over the Internet and Service Provider contracts to operating and maintaining the software (i.e., "Software as a Service" model).; (ii) Client is solely responsible for procuring and managing its own email delivery server; (iii) Client will be solely responsible for procuring and maintaining its own domain names and DNS services; and (iv) Client will be responsible for setting the domains to point to Service Provider's server.
1.5 Service Provider's Monitoring Rights. Client understands and agrees that Service Provider has the right to monitor its services for content, message, and user experience visually or electronically at any time and to disclose any information as necessary to satisfy the law or to protect itself and its customers, users, and subscribers. Service Provider reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement including in response to copyright complaints made by third parties without providing prior notice to Client. In compliance with Digital Millennium Copyright Act, Service Provider's Copyright Agent contact information will be listed on the Client's Page builder solution's public interface's Terms and Conditions page and in Client's Pages' Terms and Conditions. This Copyright Agent contact information will be listed under Service Provider's d/b/a. "Mobile Services Group".
Service Provider also reserves the right to cancel, suspend or terminate, in its sole discretion, any Client accounts that are the subject of repeat complaints. Client understands and agrees that Service Provider and its systems are not considered a "secure communications medium" and that Client has no expectation of privacy.
1.6 Term and Payment. The Term of this Agreement is month-to-month is dependent upon whether the monthly fees owed by the Client are current and up to date in accordance with the Client Subscription Agreement and the Plan fee details listed on www.signalmind.com website. All paid fees are non-refundable regardless of whether Client actually uses Service Provider's services. All payments shall be in US Dollars via credit card (Visa or Mastercard), and Client's credit card is automatically charged for the full fee. If we request your credit card information before you enter a free trial period (if your account allows a free trial period), at the end of the free trial period your credit card will be automatically charged for your first month's payment, unless you cancel before the free trial period expires. Past due accounts are subject to account suspension without notice. Service Provider, at its sole discretion, may immediately disable the entire account, certain features or services. The client's pages, statistical information, contact, customer and other data may be removed from Service Provider databases if the account is past due for over 30 days. A suspended account may be reactivated by Service Provider at its sole discretion only after the Client's account is paid up in full.
1.7 Cancellation. Past due accounts are subject to account suspension or cancellation without notice by Service Provider. Client understands and agrees that any fees paid by the Client are nonrefundable even if the account is canceled.
1.8 Data Ownership and Data Retention Policy. Client Data is information added to Client Pages by Client or Client's authorized users (including Client Page content, text, images, videos), and contact lists collected via forms on Client Pages. Service Provider does not own any Client Data. Client, not Service Provider, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Data, and Service Provider shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. Client agrees that Service Provider may perform human and/or automated analysis of Client data for demographic and marketing analysis, security, support and service improvement purposes.
In the event this Agreement is terminated (other than by reason of Client's breach for non-payment), Service Provider will make available to Client a file of the Client Data if requested by Client within 30 days of termination, and Client Pages made available to client will be made available without features or functionality that are driven by or may be proprietary to MPM including but not limited to form submissions, mobile device detection, integration with any services or contact lists, graphical interface elements or designs. Client will be billed time and materials for this effort at the Service Provider's Consulting Fee specified in Schedule B below.
Client agrees and acknowledges that (i) Service Provider is not obligated to retain Client Data for longer than 30 days after termination or cancellation, and (ii) Service Provider has no obligation to retain Client Data, and may delete Client Data, if Client has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. Upon termination for cause resulting from an uncured breach, Client's right to access or use Client Data immediately ceases, and Service Provider shall have no obligation to maintain or forward any Client Data.
1.9 Inappropriate Material. Service Provider reserves the right to decide whether any content on Client Pages could be deemed as inappropriate material. Client understands and agrees that under this Agreement any inappropriate material on Client Pages (such as, but not limited to, pornography, obscenity, unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, sexual well-being products, work at home businesses, "get rich quick" offers, network marketing (MLM) offers, credit or finance management, odds making and betting/gambling services, material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity, personally identifying information or private information about children without their consent (or their parents consent in the case of a minor), material that exploits children, or otherwise exploits children under 18 years of age, material that promotes violence), will be removed without prior notice by Service Provider in its sole discretion. Service Provider also reserves the right in its sole discretion to terminate any accounts of any repeat offenders of this or any other provision of this Agreement.
1.10 Marketing Content. Client understands and agrees that it is solely responsible for all marketing materials, including copy, documents, photographs, designs, videos used to market Client services using MPM (the "Marketing Content").
1.11 Rules on Contests, Sweepstakes, Coupons and Specials. Client understands and agrees that it is solely responsible for enforcing and making publicly available to visitors the rules related to coupons, contests, sweepstakes, promotions, and specials. Client also understands and agrees that it is solely responsible for disseminating, creating, judging, and awarding any official rules and material promoted by the Site or by the Marketing Content to end users.
Client agrees to defend, indemnify, and hold harmless Service Provider, its affiliates and their respective directors, officers, employees, and agents from and against any and all claims, actions, demands, damages, costs, liabilities, losses and expenses (including reasonable attorneys' fees) arising out of Client's use of MPM, technology including but not limited to any claims related to the Marketing Content.
1.12 White Label Accounts Scope of Work. For White Label Agency Accounts the following applies:
a) One Time Setup of Page Builder Solution: The public interface of the Page Builder Solution will include the Login and (optional) Registration page. Service Provider will make slight customization to these pages to match the Client's branding colors and include Client's logo and company name. Service Provider is not responsible for hosting any Client marketing materials on the Page builder solution. Once the client customers sign in to the secure area of the Page Builder solution, the user interface will look identical to the model site but include the Client's logo and company name. Service Provider will use its best efforts to refrain from using any material on the Client Pages that may directly identify Service Provider as the supplier of the underlying platform when any such report is filed identifying such material to Service Provider's Customer Support.
b) Required Dedicated Domains: Client will be required to provide and configure the DNS for the following: one sub-domain to be be used for the Client's page builder website and secure user area, and a dedicated domain to be used for the sub-domains of the mobile pages with an option for Client's customers to point a custom domain to their landing pages.
1.13 Illegal activity and abuse. The Client will not use, nor allow any of its customers to use, the MPM platform and Page Builder solution, in a way that is, or potentially is, illegal, a legal risk to Service Provider, generally objectionable in the Internet community, or degrading to the quality, goodwill, reputation, or provision of the Service Provider's services, including "get rich quick" offers or MLM offers, or false advertising. Without limiting any other term of this Agreement, breach of this section will constitute a material breach of this Agreement.
1.14 Covenants. Client shall make every effort to require all Client's clients/customers utilizing the MPM platform and Page Builder Solution to abide by the terms within this Agreement. In the event the Client discovers that its clients/customers are in any way violating the terms within this Agreement, the Client is required to notify Service Provider in writing, immediately.
SECTION 2
CONFIDENTIAL INFORMATION, OWNERSHIP AND RIGHTS
2.1 Confidential Information.
a. Client and Service Provider recognize and acknowledge that in performing services for Client, each party will have access to each other's confidential information concerning each party's trade secrets, business methods, business affairs, product plans, identities of licensors, suppliers, clients, agents, customers, distributors, joint venturers and other data. All such information is hereinafter collectively referred to as "Confidential Information."
b. Client and Service Provider agree that it will keep in strictest confidence, both during the term of this Agreement and subsequent to termination of this Agreement, and will not during the term of this Agreement or thereafter disclose or divulge to any person, firm or corporation, or use directly or indirectly, for its own benefit or the benefit of others, any Confidential Information.
2.2 Intellectual Property.
a. Definition. "Intellectual Property" means, wherever existing, (i) all inventions and improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (iii) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (iv) all mask works and all applications, registrations, and renewals in connection therewith, (v) all trade secrets, Confidential Information, (vi) all domain names, URLs or Internet websites, (vii) all other proprietary rights, and (viii) all copies, translations and tangible embodiments thereof (in whatever form or medium).
b. IP Owned by Service Provider. Client acknowledges that Service Provider is the sole owner of any and all Intellectual Property (as defined above in Section 2.2a of the Agreement) in and related to the MPM system including, but not limited to, the MPM technology, software, databases, source code, processes, and all accompanying graphical user interfaces, documents or materials, as well as any modifications, designs, derivative works, changes, enhancements, improvements, the content, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the MPM, conversions, copies, print-outs, or translations thereof, whether made by Client, Service Provider, or any third party (all preceding items are collectively referred to as "Service Provider Property").
If professional services or consulting engagements are commissioned by Client, then Service Provider shall retain all ownership rights to any and all software and embodied business processes. Client acknowledges that nothing in this Contract shall restrict or prevent Service Provider from performing similar services for any third party. Service Provider does not assign, transfer, convey or grant to the Client or any third party, and nothing in this Agreement shall be interpreted or construed that Service Provider assigns, transfers, conveys or grants to Client or any third party, expressly or implicitly, all or any part of the Service Provider Property or any Intellectual Property therein. The Client shall not reverse engineer, reverse assemble, disassemble or decompile the MPM, or otherwise attempt to discover any source code, algorithms, trade secrets or other proprietary rights embedded in or relating to the MPM by any means whatsoever (except and solely to the extent that applicable law prohibits reverse engineering restrictions), nor shall it permit any other person to do so. Except as expressly permitted hereunder, the MPM and the Page Builder Solution may not be leased, assigned, sublicensed or otherwise encumbered in whole or in part.
c. IP Owned by Client and its customers. Service Provider represents and warrants that Client is the owner or has a valid license to use any and all Client Intellectual Property as defined in Section 1.3 of this Agreement. Client does not assign, transfer, convey or grant to the Service Provider or any third party, and nothing in this Agreement shall be interpreted or construed that Client assigns, transfers, conveys or grants to Service Provider or any third party, expressly or implicitly, all or any part of the Client Intellectual Property therein.
2.3 Limited License. Pursuant to this Agreement, Client herby grants to Service Provider a non-exclusive, royalty-free license to use Client's Intellectual Property solely in connection with the Page Builder Solution described herein.
2.4 No Assertion of Invalidity. Client covenants not to attack or challenge the validity of any of Service Provider's Intellectual Property at any time, directly or indirectly, whether during or after the term of this Agreement.
2.5 No Affect on Validity. Client agrees that any subsequent change or changes in the duties, or compensation, will not affect the validity of this Agreement, and the termination of Service Provider's services by Client will not release Client from the obligations imposed under this Agreement.
2.6 Disclaimer of Warranties. Service Provider and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the offering or any content. Service Provider and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, b) the service will meet client's requirements or expectations, c) any stored data will be accurate or reliable, d) the quality of any product, services, information, or other material purchased or obtained by client through the service will meet client's requirements or expectations, e) errors or defects will be corrected. The service and all content is provided to client strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty or merchantability, fitness for a particular purpose, or non-infringement or third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by service provider and its licensors.
2.7 Internet Delays. Service Provider's services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Service provider is not responsible for any delays, delivery failures, or other damage resulting from such problems.
2.8 Publication. Client grants Service Provider the right to use Client's name, mark and logo on Service Provider's website, in Service Provider marketing materials, and to identify Client as a customer of Service Provider.
SECTION 3
APPLICABLE LAWS AND REMEDIES
3.1 Governing Law/Forum Selection. THIS AGREEMENT WILL BE CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT APPLICATION OF CHOICE-OF-LAW PROVISIONS THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. BY ENTERING INTO THIS AGREEMENT, ALL PARTIES IRREVOCABLY SUBMIT THEMSELVES TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN DALLAS, TEXAS WITH REGARD TO ANY DISPUTE RELATED TO THIS AGREEMENT AND ITS ENFORCEMENT. THE PARTIES ALSO HEREBY WAIVE ANY CHALLENGE TO VENUE THEY MAY HAVE TO A LAWSUIT FILED IN A STATE OR FEDERAL COURT IN DALLAS COUNTY, TEXAS, RELATING TO A DISPUTE BETWEEN THE PARTIES AS TO ANY TERM OF THIS AGREEMENT.
3.2 Injunction. Client acknowledges that Service Provider's Intellectual Property is the property of Service Provider and client has no rights to such property, despite Client's relationship with Service Provider. Client acknowledges that a violation of any covenant in this Agreement will cause irreparable damage to Service Provider and that the ascertainment of damages in the event of breach of any provision of this Agreement would be difficult, if not impossible, and for those reasons, Client further agrees that (i) upon the presentation of this Agreement in a court of competent jurisdiction Service Provider will be entitled as a matter of right, to an injunction restraining any further violation of this Agreement by Client, or its agents, affiliates, or associates, (ii) such injunction will be without need for bond or other form of security, and (iii) such right to injunction will be cumulative and in addition to whatever other remedies Service Provider may have, including but not limited to the recovery of damages.
3.3 Remedies. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder now or hereafter existing in law or in equity or by statute or otherwise. The election of any one or more remedies by either party will not constitute a waiver of the right to pursue other available remedies.
3.4 Limitation of Liability. In no event shall either party's aggregate liability exceed the amounts actually paid by and/or due from client in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type of kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless or cause in the content, even if the party from which damages are being sought or such party's licensors have been previously advised of the possibility of such damages.
SECTION 4
TERMINATION
4.1 Termination. Service Provider's provision of services under this Agreement will terminate at the time specified in the SOW, or at such time as specified by Client if Client no longer desires Service Provider's services. Either party may terminate the Agreement: (i) immediately in the event the other party breaches its material obligations and fails to cure such breach within 30 days of notice describing such breach, or (ii) immediately, upon any breach of any representation or warranty contained in the SOW. In the event of termination of this Agreement, Client will be obligated to pay Service Provider for services performed prior to the effective date of termination.
4.2 Survival of Termination. Sections 1, 2, 3 and 5 will survive any termination of this Agreement.
SECTION 5
MISCELLANEOUS
5.1 Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will be considered divisible and such provision will be deemed inoperative to the extent it is deemed unenforceable, and in all other respects, this Agreement will remain in full force and effect; provided, however, that if any such provision may be made enforceable by limitation thereof, then such provision will be deemed to be so limited and will be enforceable to the maximum extent permitted by applicable law.
5.2 No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
5.3 Indemnification. Client agrees to indemnify, defend, and hold harmless Service Provider and its representatives, successors, and assigns of any of the foregoing from and against any and all demands, claims, losses, costs, and liabilities (including without limitation, payment of reasonable attorneys' fees and other legal costs and expenses), or claims caused by or resulting indirectly from your use of Service Provider's services, without limitation or exception, including your violation of any third-party's rights, (including, without limitation, infringement of any copyright trademark, service mark, logo, designs, trade secrets, right of privacy or publicity or any other third party right).
5.4 Entire Agreement. This Agreement and any statement of work and schedules attached herewith constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements. This Agreement may not be modified or otherwise amended except by an instrument in writing signed by the party against which enforcement is sought. In entering into this Agreement, all parties represent and warrant that they did not rely upon any prior representations, discussions, agreements, or negotiations not contained in this Agreement, and that this Agreement constitutes the entire agreement between the parties.
5.5 Binding Effect. This Agreement is intended to benefit and be binding upon the parties, and their agents, employees, officers, directors, attorneys, legal representatives, beneficiaries, estates, predecessors, successors, parent corporations, subsidiaries, shareholders, branches, and assigns.
5.6 Authority to Sign. Each party represents and warrants that the person signing this Agreement on its behalf has the authority to bind that party to this Agreement.
5.7 No Joint Venture. Nothing in this Agreement will be construed to place the parties in the relationship of agent, employee, franchisee, officer, partners, or joint ventures. Neither party may create or assume any obligation on behalf of the other.
5.8 Non-Transferrable. This Agreement for the Services, being personal in nature, is not assignable or transferable by Client, and may not be assigned, transferred or otherwise delegated to a third party, in whole or in part, absent prior written approval from Service Provider. Service Provider may transfer or assign its obligations and rights under this Agreement to a third party, and shall provide written notice to the Client of any such transfer or assignment.
5.10 Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or by electronic mail in portable document format (PDF) shall be effective as delivery of a manually executed counterpart of this Agreement.