Customer SaaS Agreement
1. Provision of the Services.
Upon execution of the Order Form by the parties and conditioned on Client’s timely payment of Fees (as defined below) and compliance with all other terms and conditions of this Agreement, BCC will use commercially reasonable efforts to make the Services available to Client on the terms and conditions of this Agreement.
Permitted Use. Client and the Client employees and agents authorized by Client to use the Services pursuant to this Agreement (collectively, “Authorized Users”) may access and use the Services solely for the purpose of collecting website news articles from external sources and developing Exclusives (as defined below), in each case, for its display thereof on the Client Site (as defined below) (“Permitted Use”). For the sake of clarity, subject to execution of a separate order form, Client may obtain the right to access and use the Services for its affiliates or other related companies. Client and its Authorized Users will access and use the Services solely in accordance with the conditions and limitations set forth in this Agreement, any Services documentation, and the Services Terms and Conditions, which will be available in each case prior to accessing the Services (“T&Cs”). The authorization set forth in this paragraph is non‐exclusive and non‐transferable. Client will be solely and exclusively responsible for any breach by its “Representatives” which, for purposes of this Agreement, means Authorized Users and any other persons accessing the Services directly or indirectly through Client, whether authorized, unauthorized or otherwise of this Agreement, or of any terms contained in any Services documentation. Furthermore, as between BCC and its licensors on one hand, and Client on the other, neither BCC nor its licensors will be responsible or liable indirectly or directly, and Client will be solely and exclusively responsible and liable directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Representatives.
Prohibited Conduct. Further limiting the scope of the Permitted Use, Client will not, and will not permit others to: (i) make the Services (in whole or in part) available to anyone other than Client or its Authorized Users for the sole purpose of the Permitted Use; (ii) sell, resell, license, sublicense, distribute, rent or lease the Services (in whole or in part); (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third‐party rights, including privacy rights; (iv) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses (“Malicious Code”); (v) interfere with or disrupt the integrity or performance of the Services (in whole or in part); (vi) attempt to gain unauthorized access to the Services or its related systems or networks or access or use the Services other than by an Authorized User through the use of their own then valid Access Credentials (as defined below); (vii) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit; (viii) copy, modify or create derivative works or improvements of the Services or any part, feature, function or user interface thereof; (ix) frame or mirror the whole or any part of the Services; (x) access the Services (in whole or in part) in order to build a competitive product or service; (xi) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or any part, feature, function or user interface thereof; or (xii) use the Services in any way that violates this Agreement, any third party rights, or any applicable laws, rules, regulations or orders having the force of law (collectively, “Laws”).
Access Credentials. Client and each Authorized User may be issued a user name, identification number, password, or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services (“Access Credentials”). As between BCC and Client, Client has and will retain sole and absolute responsibility for: (i) the security and use of Client’s and its Authorized Users’ Access Credentials; and (ii) all access to and use of the Services directly or indirectly by or through Client Systems (as defined below), Client’s or its Authorized Users’ Access Credentials, Representatives, or any other means controlled by Client or any Authorized User, in each case, with or without Client’s knowledge or consent, and including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
Technical Requirements for the Services. For the Client Site (as defined below), Client must throughout the Term have and maintain and control the applicable domain name. In order to access the Services, Client and each Authorized User must have and maintain: (i) an up‐to‐date version of Firefox, Chrome, Safari, or other Chromium based browser; and (ii) access to a computer or tablet to access the Services’ backend. As set forth in Section 10(b)(ii) below, it is possible, but not practical to access the Services’ backend on a mobile device. For the avoidance of doubt, as between BCC and Client, Client will be solely and absolutely responsible for complying with the technical requirements set forth in this Section, and for otherwise maintaining all Client Systems (as defined below), and including the “front end” communications connection linking Client’s computers or network to the Internet. Client acknowledges and agrees that failure to meet any of such requirements may cause the Services, including the Client Site (in whole or in part) to function ineffectively or inappropriately. BCC will in no event be responsible for any losses, failures or liabilities that arise as a result of Client’s failure comply with the requirements set forth in this Section.
Subcontractors. Client acknowledges and agrees that BCC may subcontract all or a portion of the functionalities or services available on the Services to affiliates of BCC or other third parties from time to time (“Third Party Service Providers” and such functionalities or services, “Third Party Services”), and hereby provides its affirmative consent regarding the same. Client further agrees that: (i) the Services relies on API integration for many of the features and functions, but that API integration has its own inherent level of unpredictability and inconsistency, and such unpredictability and inconsistency is out of the control of BCC. BCC will use commercially reasonable efforts to utilize adequate API integration; (ii) (w) BCC offers the Services as a distributor/licensee of Qwark Labs, LLC (“Qwark”), (x) the Services have been white labeled by Qwark for BCC, (y) BCC’s provision of the Services pursuant to this Agreement is and will be at all times subject to its agreement with Qwark (the “Qwark Agreement”), and (z) on termination of the Qwark Agreement for any reason, BCC will assign this Agreement to Qwark, provided that Qwark reserves the right to continue to make the Services available on a MRI white‐labeled basis.
Maintenance Releases. During the Term, BCC or its licensors (including Qwark) may in its sole discretion make or issue updates, upgrades, releases or other adaptations or modifications of the Services, in whole or in part (collectively, “Maintenance Releases”). Maintenance Releases, if any, will constitute a part of the Services for purposes of this Agreement. BCC or its licensors (including Qwark) may, in its sole discretion, make a new versions of the Services, including new product lines or tools that may be branded differently but are nonetheless part of the Services master code base (“New Versions”) available to Client under the terms and conditions of this Agreement. Any New Versions so offered by BCC will constitute a part of the Services for purposes of this Agreement. For the avoidance of doubt, BCC and its licensors (including Qwark) reserve the right to offer any New Version subject to BCC’s pricing in effect at the time of the New Version offer. If any Maintenance Release or New Version made available to Client or incorporated by BCC into the Services requires for its proper and effective use the modification of certain Services settings, Client Site Content (as defined below), Client Materials or any other accommodation, affirmative action or update on the part of Client (any such modification, accommodation or affirmative action on the part of Client, “Accommodations”), then BCC will notate such Accommodations in the relevant release note for such Maintenance Release or New Version, if and as applicable.
Caps on Usage and Data Storage. Unless provided otherwise in the Order Form, Client’s bandwidth use of the Services, including, but not limited to, data retrieval and downloads from the Client Site and downloads from the Services, will not exceed any caps on data or storage as set forth in applicable Services documentation. If BCC or its licensors (including Qwark) at any time notifies Client that Client has exceeded any cap on usage or data storage (with email notification being sufficient), then Client will have ten (10) business days to cure the violation (“Notice Period”), and in the event Client fails to timely cure in all respects any such violation, BCC may in its sole discretion choose to impose additional usage or storage fees. For the avoidance of doubt: (i) BCC may block or impede Client’s continued use or capacity (as applicable) during the Notice Period and at all times thereafter, unless and until Client cures the relevant violation in all respects or agrees to additional usage or storage fees before the expiration of the same; (ii) any “downtime” of the Services (including the Client Site) as a result of Client’s exceeding of the usage or storage amounts set forth in this Section will result in no liability or other obligation whatsoever to BCC.
2. Professional Services.
From time to time during the Term (as defined below), BCC via its licensors (including Qwark) may provide certain professional services, including Onboarding Services, Customization Services, and Other Professional Services (each as defined below), and each as set forth on the Order Form or otherwise offered and agreed to by BCC (or the applicable licensor) from time to time (all such services, collectively, “Professional Services”).
Onboarding Services. “Onboarding Services” may include set‐up, limited branding of the Services’ standard public facing website (the “Base Site”) for Client (such Base Site, as branded for Client, the “Client Site”), connection of the initial RSS feeds to the aggregator (up to twenty (20)), and establishing other settings, in each case, if and as expressly set forth in the Order Form. With respect to the Client Site, with the exception of reasonable white label adjustments, other than as being provided pursuant to Customization Services, the limited branding portion of the Onboarding Services will not include any website development services, or customization of any feature, functionality, product, tools or other materials available on or via the Base Site. BCC through its licensor, Qwark, will provide Onboarding Services as expressly set forth on the Order Form, and any additional services associated with onboarding will be deemed Other Professional Services and charged at the rates set forth in the Order Form, or if no such rates are set forth in the Order Form, then such other rates as in effect at the time such Other Professional Services will be provided. For the avoidance of doubt, other than as being provided pursuant to Customization Services, and other than via the Services’ standard setting options, the Services will not include any customization of any feature, functionality, product, tools or other materials available on or via the Services.
Customization Services and Other Professional Services. BCC via its licensor, Qwark, may provide certain customization services relating to the Services (including the Client Site) if expressly agreed to in the Order Form or if hereafter agreed to in writing by Client and BCC (any such services, “Customization Services”). BCC may also provide certain other professional services if expressly agreed to in the Order Form or if hereafter agreed in writing by Client and BCC (such other professional services, “Other Professional Services”). For the avoidance of doubt, BCC may accept or reject any requests received from Client on or after the Effective Date to change any specifications set forth in the Order Form, this Agreement or otherwise agreed to in writing by the parties, or to perform any Customization Services or Other Professional Services not set forth in and agreed to in the Order Form, in BCC’s sole and absolute discretion. BCC does not represent or warrant and makes no guaranty whatsoever that it can or will provide any Customization Services or Other Professional Services. If BCC will provide Customization Services or Other Professional Services, then: (i) such Customization Services or Other Professional Services will be provided at the pricing in effect at the time such Customization Services or Other Professional Services are provided, or at such other price mutually agreed upon by the parties in writing; (ii) any Results (as defined below) thereof will constitute a part of the Services (including the Base Site, as applicable) subject to the terms and conditions of this Agreement (including Section 7 (Ownership)).
Effect of Client Delays. BCC is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, BCC may extend all or any subsequent due dates as BCC deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies BCC may have for any such failure or delay by Client. For the avoidance of doubt, Client will be responsible for payment for additional hours of work caused by any delay or failure caused in whole or in party by Client at the rates in effect for the relevant Professional Services at the time of such delay or failure.
Certain Acknowledgements Regarding the Client Site. During the Term, BCC (including its licensor, Qwark) may in its sole discretion update, upgrade, or otherwise adapt or modify the Base Site or the technology underlying the Base Site (and thus, in its sole discretion, the Client Site), which may include, among other things, error corrections, enhancements, improvements or other changes. Client acknowledges and agrees that the Client Site will include on each of its pages a prominent display of a Qwark mark and text attribution adjacent to it in a format substantially similar to the following: “powered by Qwark.”
3. Certain Client Responsibilities.
Delivery of Client Materials. Client will provide BCC with all content, data, information, and other materials that are reasonably requested by BCC in connection with its performance under this Agreement (such content, data, information and other materials, together with any and all Client data, information or materials, and Client Site Content, collectively, the “Client Materials”). Without limiting the generality of the foregoing, at all times during the Term, Client will keep its Nameserver records directed to the IP Addresses of Qwark’s servers at all times and participate in updating those records should the IP Addresses change. For the avoidance of doubt, neither BCC nor its licensors make any effort (and is no way obligated) to validate any Client Materials for completeness, correctness, accessibility or legality.
Cooperation. Client will cooperate with BCC in all respects, including provision of information and support as may be reasonably required for purposes of BCC’s performance under this Agreement. Without limiting the generality of the foregoing, Client will ensure that its information technology team responds to any request from BCC or its licensors, including Qwark, for information or cooperation promptly and without undue delay, and in any event, within two (2) business days of the request.
Project and Account Managers. Each party will designate project or account managers to manage the parties’ relationship pursuant to this Agreement. Subject to Section 14, the parties’ project or account managers may communicate via telephone or email regarding this Agreement, and provided, however that: (i) BCC and its licensors, including Qwark, may rely and act on instructions, approvals or other communications of Client representatives who BCC or its licensors (as applicable) believe have authority to provide such instructions, approvals or other communications; and (ii) any authorization by BCC to provide Professional Services may be provided only by BCC in writing (with email being sufficient).
Compliance with Laws and Third‐Party Rights. Client will ensure that Client Materials and Client’s activities in connection with or use of the Services do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights. For the avoidance of doubt, Client acknowledges and agrees that neither BCC nor its licensors (including Qwark) or employees provide legal advice, and that Client remains solely and exclusively responsible for its compliance with all Laws in connection with Client’s activities in connection with or use of the Services, including Client’s collection of any data or information (including any personally identifiable information) via the Client Site. Client will consult with legal counsel of its choice to obtain appropriate legal advice.
4. Service Levels and Customer Support.
Services Availability. BCC will use commercially reasonable efforts to make the Services available to Client except for: (i) planned or scheduled downtime; (ii) downtime or degradation due to: a Force Majeure Event (as defined below) or any other circumstances beyond BCC’s reasonable control, including Internet service provider failure or delay or all or any portion of the Client Materials themselves; (iii) any suspension or termination of Client’s or any Representatives’ access to or use of the Services as permitted by this Agreement; or (iv) any one or more of all or a portion of the Client Causes (as defined below).
Customer Support. BCC via its licensor, Qwark, will use commercially reasonable efforts to provide Client with customer support consistent with its standard customer support policies in effect from time to time, and which are currently located at [TO INSERT LINK].
Definition of Client Causes. For purposes of this Agreement, “Client Causes” means any one or more of the following: any nonconformity or other error that arises out of, relates to or is the direct or indirect result of any changes, modifications, deletions or other adjustments to the Services or Client Materials (including the submission of additional Client Materials into the Services) by Client, by BCC pursuant to Client’s (or any Representative’s) instructions or by any third party, Client’s misuse or manipulation of or damage to the Services or Client Materials in any respect (including, without limitation, use of the Services by Client or any Representative other than as permitted by this Agreement), any content that becomes outdated over time, or Client’s failure to timely and appropriately implement any Accommodations; (ii) any nonconformity or other error that occurs only in older versions of web browsers or operating systems (versions prior to the most recently released version), or only in web browsers or operating systems that account for less than 10% of a website’s or application’s regular traffic; (iii) any nonconformity or other error that arises out of, relates to or is the direct or indirect result of any Third Party Services (including API integrations); (iv) any nonconformity or other error that arises out of, relates to or is the direct or indirect result of Client’s (or any of its Representative’s) combining or merging the Services with any hardware or software not supplied or identified as compatible by BCC or its licensor, Qwark; or (v) any nonconformity or other error that arises out of, relates to or is the direct or indirect result of Client’s failure to comply in any respect with this Agreement, including, without limitation, the technical requirements set forth in Section 1(d).
5. Term and Termination.
Term. The initial term of this Agreement (“Initial Term”) will commence as of the Effective Date and will terminate on the date that is twelve (12) months from the Effective Date. The Initial Term, and any Renewal Term (as defined below) will automatically renew for successive one (1) year renewal terms (each, a “Renewal Term”) unless either party provides the other with written notice of its intent to not renew at least thirty (30) days in advance of expiration of the Initial Term or the then‐current Renewal Term. The Initial Term and each Renewal Term (if any) are collectively referred to as the “Term.”
Termination. A party may terminate the Term: (i) immediately, by providing the other party with written notice, if such other party is in material breach of this Agreement that is not capable of cure (as determined by the non‐breaching party in its sole, but reasonable discretion) or (if capable of cure) is not cured within fifteen (15) days of receipt of written notice of such breach; (ii) upon written notice, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; and (iii) as otherwise expressly set forth in this Agreement.
Effect of Termination. Upon expiration or termination of the Term for any reason: (i) BCC will via its licensor Qwark immediately cease Client’s access to the Services (including the Client Site); and (ii) if the Disclosing Party (as defined below) requests it within fourteen (14) days of the effective date of termination or expiration, the Receiving Party will, at its option, either return to the Disclosing Party or certify destruction of, any and all copies of Confidential Information in the possession of the Receiving Party, provided, however, that if Client within such fourteen (14) day period requests in writing a copy of any Exclusive(s), then BCC will provide Client with a WordPress XML document containing such Exclusive(s). Provision of such Exclusive(s) in any other format will be at BCC’s sole and exclusive discretion. Following expiration of this fourteen (14) day post‐termination period, BCC will have no obligations whatsoever to Client with respect to the return of any Client Materials, including, without limitation, any articles in Client’s “Exclusives” section of the Services. Notwithstanding termination or expiration of the Term for any reason, the following provisions, as well as any other provision which, by its nature, would be reasonably expected to survive such termination or expiration, will survive: 1(b), 1(e)(ii)(z), 5(c), 6(a), 6(b), 6(c), 7 and 9 – 15 (inclusive).
Suspension of Access to the Services. BCC may, directly or indirectly and by any lawful means (including any disabling device), suspend or otherwise deny Client’s or any Representative’s access to or use of all or any part of the Services (including the Client Site) without incurring any resulting obligation or liability, if: (i) Client fails to pay any amount when due under this Agreement, and such failure continues for fifteen (15) days or more after the relevant due date; (ii) BCC or its licensor Qwark believes, in its sole and absolute discretion, that Client or any Representative: (x) has failed to comply with any term of this Agreement (including, without limitation, the bandwidth limitations set forth herein); (y) has accessed or used the Services beyond the scope of the authorization granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of BCC; (z) is, has been, or is likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on BCC or its licensors (including Qwark) or negatively impair its goodwill (in each case, in BCC’s sole and absolute discretion); (iii) the Term is terminated or expires; (iv) BCC receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires BCC to do so. This paragraph does not limit any of BCC’s other rights or remedies whatsoever, including any rights or remedies at law, in equity or under this Agreement.
6. Fees and Payment Terms.
Fees. In consideration of the Services, Client will pay all fees specified in the Order Form (“Fees”). Client will pay the annual Services Fee for the Initial Term in accordance with the terms set forth on the Order Form or, if left blank or unclear, in full within five (5) business days of the Effective Date, the annual Services Fee for each Renewal Term as set forth in the Order Form, or if left blank or unclear, in full within five (5) business days of the start date of such Renewal Term, and all other amounts due to BCC in accordance with the terms set forth on the Order Form or, if left blank or unclear, within 30 days of the invoice. All payment obligations of Client under this Agreement are non‐cancelable and Fees paid are non‐refundable. Client will pay all Fees in US Dollars by certified check, ACH, or wire or other electronic transfer of immediately available funds to an account designated in writing by BCC. All amounts payable to BCC under this Agreement will be paid by Client to BCC in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or any deduction or withholding of tax as may be required by applicable Law.
Overdue Charges. If any invoiced amount is not received by BCC by the due date, then without limiting BCC’s rights or remedies, those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower. Additionally, Client will reimburse BCC for all costs incurred by BCC in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value‐added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchase of access to the Services. If BCC has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, BCC will invoice Client and Client agrees to pay that amount unless Client provides BCC with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, BCC is solely responsible for taxes assessable against it based on its income, property and employees.
Fee Increases. BCC may increase annual Fees from time to time upon forty‐five (45) days’ advance written notice to Client (with email delivery being sufficient). Renewal of the Initial Term and any Renewal Term will constitute Client’s acceptance of any increase in annual Fees. BCC may increase Fees for any Professional Services at any time and from time to time. For the avoidance of doubt, for Professional Services, Client will pay the applicable Fees in effect at the time such Professional Services are provided, and notwithstanding anything to the contrary in the Order Form or otherwise.
Future Functionality. Client acknowledges and agrees that its entrance into this Agreement is not contingent on the delivery of any future functionality or features of the Services (including the Client Site), or dependent on any oral, written and/or public comments made by BCC regarding any such future functionality or features unless otherwise noted on the Order Form.
7. Ownership and Licenses.
Ownership. All right, title, and interest in and to the following, including all features, functionalities and codes thereof and any and all related intellectual property rights (whether registered, unregistered, granted, applied for, or otherwise now or hereafter in existence), are and will remain solely and exclusively with BCC or its licensors (including Qwark, as applicable): (i) the Services; (ii) the Base Site; (iii) the Client Site (including the source code, but excluding Client Materials); (iv) the “”BCC,” “Qwark” and “Qwark Labs” name, brand, marks and other similar intellectual property; and (iii) any and all works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials and all other work product of any nature whatsoever, created, prepared, produced, authored, edited, amended, conceived or reduced to practice by BCC, Qwark and/or Client independently or jointly with others as a result of Professional Services (in each case, regardless of when or where prepared or whose equipment or other resources are used in preparing the same) (collectively, “Results”). Client has no right, license, or authorization with respect to any of the foregoing except as expressly set forth in Section 1 or the applicable third‐party license, in each case subject to the terms and conditions of this Agreement. All other rights in and to the foregoing are expressly reserved by BCC or its licensors, including Qwark (as applicable).
Client Ownership. All Client Materials will be and remain the sole and exclusive property of Client or its Authorized Users, as applicable. Client grants a worldwide, fully‐paid up, royalty‐free license to BCC, its licensors (including Qwark) and its and their respective hosting service providers, to host, copy, transmit and display Client Materials as necessary for BCC to provide access to the Services in accordance with this Agreement. Additionally, Client acknowledges and agrees that: (i) BCC may use and display Client’s name, logo, non‐Confidential Information (including any Client Site Content) and marketing materials, and Client’s employees’ and members’ names and likeness (including photos, video content, audio content and other content) for marketing purposes; and (ii) BCC and Qwark may utilize Client Materials (including any data and information uploaded or stored by Client or any Representatives to or via the Services) on an aggregated and anonymous basis for its business purposes.
License to use Feedback. Client grants to BCC and Qwark a worldwide, perpetual, irrevocable, transferable and royalty‐free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its Representatives relating to this Agreement (collectively, “Feedback”). Any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by BCC or its licensors (whether alone or together with Client or any other third party or parties) arising out of or relating to such Feedback are and will remain the sole and exclusive property of BCC or its licensors (including Qwark).
Further Assurances. During and after the Term, each party will cooperate with the other to do any and all things which reasonably necessary or desirable to establish, maintain, protect and enforce a party’s exclusive ownership of the property identified in this Section.
8. Data and Security.
BCC Security and Data Backup. BCC will employ security measures with respect to the Services in accordance with applicable industry practice. While the Services does not and is not intended to replace the need for Client to maintain regular data backups or redundant data archives, BCC will use commercially reasonable efforts to cause the Services to perform routine data backups, excluding however, any data obtained from or located on the Services as a result of Third Party Services. In the event of any loss, destruction, damage, or corruption of any Client Materials caused by the Services, BCC will, as its sole obligation and liability and as Client’s sole remedy, use commercially reasonable efforts to restore the Client Materials from BCC’s then most current backup of such Client Materials. In the event of any loss, destruction, damage, or corruption of Client Materials caused by Client, on the mutual consent of Client and BCC, Client may engage BCC to use commercially reasonable efforts to restore such Client Materials from BCC’s then most current backup of such Client Materials, subject to charge at BCC’s then current rates (and such engagement shall constitute Professional Services for purposes of this Agreement).
Client Materials. Client will: (i) be solely and completely responsible for the accuracy, quality and legality of any and all Client Materials, the means by which Client acquired Client Materials, and the use of the same by Client and its Representatives; and not upload, store or otherwise make available on the Services (including the Client Site) any materials, data or information that contain Malicious Code or that violate any Laws, including, without limitation, any third party intellectual property, privacy or other rights. Without limiting the generality of the foregoing, if Client Materials include any personal information of individuals, Client will ensure that its and its Representatives’ collection and submission into the Services (including the Client Site) of the same, and its, its Representatives’ and BCC’s and its licensors’ use and storage of the same as contemplated by this Agreement does not violate any third party rights, and otherwise complies with Laws, including, without limitation, any Laws relating to the consent of or disclosure to consumers with respect to the collection, use or disclosure of such information as contemplated by this Agreement. If BCC receives information indicating or otherwise reasonably believes that all or any portion of any Client Materials may violate Laws, any third‐party rights or otherwise could reflect poorly on BCC or its licensors or negatively impair its goodwill (in each case, in BCC’s sole and absolute discretion), BCC may so notify Client and, in such event, Client will promptly remove such Client Materials from the Services (including the Client Site, if applicable) or modify such Client Materials in order to resolve the potential violation or issue (as applicable). If Client does not promptly take required action in accordance with the preceding sentence, BCC may unilaterally disable and delete the applicable Client Materials from the Services (including the Client Site, if applicable), and (in its sole discretion) terminate this Agreement or any portion thereof.
Client Security. Client will employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) prevent unauthorized access to or use of Services, and will notify BCC promptly of any such unauthorized access or use; (ii) securely administer the distribution and use of all Access Credentials and Client Materials and protect against any unauthorized access to or use of the Services, Access Credentials and Client Materials; and (iii) control the content and use of Client Materials.
Services and Systems Control. Except as otherwise expressly provided in this Agreement, as between the parties: (i) BCC has and will retain sole control over the operation, provision, maintenance, and management of the Services; (ii) Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of its information technology infrastructure, including, without limitation, its computers, software, databases (excluding the Services), electronic systems (excluding the Services, but including any other database management systems), and networks, whether operated directly by Client or through the use of third‐party services (“Client Systems”).
Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any and all confidential or proprietary information of the Disclosing Party (as defined below) or of a third party (including, in the case of BCC, of Qwark) and held by the Disclosing Party on a confidential basis, including, without limitation, documents, reports, analyses, data, studies, drawings, samples, suppliers, customers, pricing, pricing techniques, copyright, trademark and patent applications, marketing and sales techniques and plans, projections, technology, methods, procedures, software (including all documentation and code), hardware and system designs, architectures and protocols, trade secrets, know‐how, and observations, whether disclosed orally or in writing, whether or not marked as “confidential,” and whether disclosed or made available to the Receiving Party before, on or after the date of this Agreement. “Disclosing Party” means the party disclosing or making available the Confidential Information. “Receiving Party” means the party receiving the Confidential Information. In the case of BCC as the Disclosing Party, Confidential Information includes the terms, but not the existence of, this Agreement.
Exceptions to Confidential Information. “Confidential Information” will not include any information that, as evidenced by a written documentation: (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the Receiving Party without breach of any obligation owed to the Disclosing Party; (iii) was lawfully received by the Receiving Party from a third party without any obligation of confidentiality owed to the Disclosing Party or any third party; (iv) was known to the Receiving Party, its employees or agents prior to its receipt from the Disclosing Party without any obligation of confidentiality owed to the Disclosing Party or any third party; or (v) was independently developed by the Receiving Party without use or reference to the Confidential Information and without breach of this Agreement. If Confidential Information is required to be disclosed by the Receiving Party pursuant to judicial order or other compulsion of law, the Receiving Party will provide to the Disclosing Party prompt written notice of such order (to the extent legally permissible), cooperate with the Disclosing Party, at the Disclosing Party’s expense, to maintain the confidentiality of such information, and comply with any protective order imposed on disclosure of such information.
Duty of Confidentiality. The Receiving Party will: (i) safeguard Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (ii) use Confidential Information for the sole purpose of performing its obligations under or exercising its rights pursuant to this Agreement; (iii) restrict disclosure of Confidential Information (including Client Materials, in the case of BCC, and the Services, in the case of Client) to those of its officers, directors, employees, professional advisors, contractors, agents and representatives with a need to know such information for the sole purpose of performing its obligations under or exercising its rights pursuant to this Agreement; and (v) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information.
10 .Representations and Warranties; Disclaimer.
Representations and Warranties. Each party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iii) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Client further covenants, represents and warrants that it has all rights, authorizations and consents necessary to provide BCC with the Client Materials, and that Client Materials, the use thereof by BCC and its licensors in accordance with the terms of this Agreement, and Client’s activities in connection with or use of the Services and on the Client Site do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights (including any contract rights).
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, BCC AND ITS LICENSORS ARE PROVIDING THE SERVICES AND ALL PROFESSIONAL SERVICES “AS IS” AND BCC AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON‐INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO THE SAME. BCC MAY CHANGE OR SUSPEND THE SERVICES OR ANY PROFESSIONAL SERVICES (IN WHOLE OR IN PART), OR MAY CHANGE, SUSPEND OR DISCONTINUE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF THE SERVICES OR ANY PROFESSIONAL SERVICES (IN WHOLE OR IN PART), AT ANY TIME AND FROM TIME TO TIME. WITHOUT LIMITING THE FOREGOING, BCC MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PROFESSIONAL SERVICES OR ANY RESULTS OF THE USE THEREOF, WILL CONTINUE TO BE PROVIDED, FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD‐PARTY SERVICES INCLUDED IN THE SERVICES ARE PROVIDED “AS IS” AND SUBJECT TO ANY APPLICABLE THIRD PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD‐PARTY SERVICES IS STRICTLY BETWEEN CLIENT AND THE THIRD‐PARTY SERVICE PROVIDER. NEITHER BCC NOR QWARK WILL IN ANY EVENT BE RESPONSIBLE FOR ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES, OR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF, THE CLIENT SITE OR ANY CLIENT MATERIALS.
Without limiting the generality of the foregoing, Client acknowledges and agrees that, the Services (including the Base Site, and thus, the Client Site) is not specifically designed to work on mobile devices. As a result, some of the features and functions of the Services (including the Client Site) will not be available or will not operate properly on mobile devices. Use by Client, its Representatives or any third party of the Services (including the Client Site) on a mobile device is done at Client’s sole and absolute risk. Use of the Services (including the Client Site) may be partially available through a compatible mobile device, the Internet, or using additional software. Client agrees that Client is solely and absolutely responsible for these requirements, including any applicable changes, updates and fees associated with such action, as well as the terms of Client’s agreement with Client’s mobile device and telecommunications provider.
BCC Indemnification. BCC will indemnify, defend, and hold harmless Client from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) incurred by Client resulting from any claim or action by a third party (other than an affiliate of Client) alleging that Client’s or an Authorized User’s use of the Services (excluding Client Materials and Third‐Party Services) in accordance with this Agreement infringes or misappropriates such third party’s patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (i) Third‐Party Services or Client Materials; (ii) access to or use of the Services in combination with any hardware, system, software, network, or other materials or service not provided by or on behalf of BCC or specified for Client’s use in the Services documentation; (iii) modification of the Services other than by or on behalf of BCC or with BCC’s written approval in accordance with BCC’s written specifications; (iv) failure to make any Accommodations, or to timely implement any modifications, upgrades, replacements, or enhancements made available to Client by or on behalf of BCC; or (v) act, omission, or other matter described in Section 11(b)(i), Section 11(b)(ii), Section 11(b)(iii), or Section 11(b)(iv), whether or not the same results in any action or claim against or Losses by any BCC Indemnitee.
Client Indemnification. Client will indemnify, defend, and hold harmless BCC and its licensors (including Qwark), subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “BCC Indemnitee”) from and against any and all Losses incurred by such BCC Indemnitee arising out of, relating to or resulting from: (i) Client Materials or any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Representative, including any use, disclosure or storage of the same by or on behalf of BCC in accordance with this Agreement, and BCC’s or its licensors’ compliance with any specifications or directions provided by or on behalf of Client or any Representative to the extent prepared without any contribution by BCC; (ii) any transactions or activities conducted by Client on, through or as a result of the Services, including the Client Site; (iii) Client’s breach (or alleged breach) of any of its representations, warranties, covenants, or obligations under this Agreement; or (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Representative, or any third party on behalf of Client or any Representative, in connection with this Agreement.
Indemnification Procedure. Each party will promptly notify the other party in writing of any action or claim for which such party believes it is entitled to be indemnified pursuant to Section 11(a) or Section 11(b), as the case may be. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly assume control of the defense and will employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will not settle any action or claim without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such action or claim, then the Indemnitee will have the right, but no obligation, to defend against such action or claim, including settling such action or claim after giving notice to the Indemnitor, in each case, in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 11(c) will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
Mitigation. If all or any portion of the Services or its underlying technology is, or in BCC’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third‐party intellectual property right, or if Client’s or any Representative’s use of the Services is enjoined or threatened to be enjoined, BCC may, at its option and sole cost and expense: (i)obtain the right for Client to continue to use the Services, materially as contemplated by this Agreement; (ii) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non‐infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute a part of the Services, as applicable, under this Agreement; or (iii) by written notice to Client, terminate this Agreement with respect to all or part of the Services, and require Client to immediately cease any use of the Services or any specified part or feature thereof.
THIS SECTION 11 SETS FORTH CLIENT’S SOLE REMEDIES AND BCC’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES, OR ANY OTHER MATEIALS PROVIDED BY OR MADE AVAILABLE BY BCC UNDER THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. Limitation on Liability; Mutual Waiver of Class Action Participation.
Exclusion of Damages. IN NO EVENT WILL BCC OR ANY OF ITS LICENSORS, INCLUDING QWARK, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Cap on Monetary Liability. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF BCC AND ITS LICENSORS, INCLUDING QWARK, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY CLIENT TO BCC UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Waiver of Class Action Participation. Neither Client nor BCC may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. CLIENT AND BCC ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
13. Force Majeure.
Except for a party’s payment obligations under this Agreement, each party will be excused from performance of its obligations for any period and the time of performance will be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority, war, civil disturbance, court order, legal requirement, order or lockdown, pandemic, epidemic, health crisis, labor dispute or any other cause beyond its reasonable control, including, in the case of BCC, Third Party Service malfunctions (such as interruption of Third Party Service services or functions) hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment or network outside of BCC’s reasonable control (each, a “Force Majeure Event”) for the time period the party is unable to perform.
All notices, demands, requests or other communications which may be or are required to be given, served, or sent by a party to the other party pursuant to this Agreement will be in writing and will be hand delivered, sent by certified mail, return receipt requested, sent by widely‐recognized national or international delivery courier service or sent via email with confirmed answer back, addressed as set forth below. Documents delivered by hand will be deemed to have been received upon delivery; documents sent by email will be deemed to have been received when the answer back is received; documents sent by certified mail, or courier service will be deemed to have been received upon their receipt, or at such time as delivery is refused by the addressee upon presentation. Either party may change the address for notice by notifying the other parties of such change in accordance with this Section.
If to BCC:BCC Media GroupAttn: Legal Department 2400 East Commercial Boulevard, Suite 718Fort Lauderdale, FL 33308
If to Client:To the address designated on the Order Form and marked to the attn. of “Legal Department”.
In all cases, with copy to :email@example.com
This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Florida without regard to conflict of law principles. Any civil action or legal proceeding arising out of or relating to this Agreement will be brought solely and exclusively in the courts of record of the State of Florida in Broward County or the United States District Court, Southern District of Florida, Fort Lauderdale Division, and each party consents to the exclusive jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Client may not assign this Agreement without the prior written consent of BCC; provided, however, that Client may assign this Agreement to a third party acquiring all or substantially all of Client’s equity interests or assets without the prior written consent of BCC (subject to Client providing BCC with written notice of such acquisition as soon as reasonably practical upon the closing of such acquisition). No delay or omission by BCC to exercise any right or power under this Agreement will impair any such right or power, or be construed as a waiver thereof. A waiver by BCC in any one instance of any of the covenants, conditions or agreements to be performed by Client will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. Except as otherwise provided in this Agreement, the provisions of this Agreement may not be amended, supplemented or changed orally, but only by a writing signed by authorized representatives of the parties and that makes specific reference to this Agreement. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement and will not limit or otherwise affect in any way its meaning or interpretation. This Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement, which will remain in full force and effect. This Agreement (including the Order Form) represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings and representations (if any) made by and between such parties, whether orally or in writing. The Order Form may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. Confirmation of execution by electronic transmission signature page or other electronic execution means will be binding, and each party irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic execution.
I accept this order form, including the terms, and agree to be bound hereby and thereby. I hereby represent and acknowledge that:(I) I am an authorized signatory for client; (II) I have read and agree to this order form and the terms; and (III) by clicking the submit button below, I am executing this order form and entering into a legally binding contract for and on behalf of client