TERMS AND CONDITIONS
1. License Rights
To the extent that any preexisting content, materials, or other intellectual property of Infuse Media Group or its licensors that are used to create the export files, and all intellectual property rights therein (“Preexisting Materials”) are used in developing any deliverables, Infuse Media Group grants to Client a perpetual, transferable, nonexclusive, worldwide, fully paid-up and unrestricted right and license to use such Preexisting Materials only as part of the deliverables, except that Client shall treat any Preexisting Materials (or components thereof) consisting of computer source code or associated documentation as highly Confidential Information of Infuse Media Group and shall not distribute or disclose any such materials to any individual or entity other than Client personnel who have a need to know and are under legal obligation to Client to comply with the requirements of this agreement.
2. Reservation of Other Rights
Except as expressly set forth in this agreement, no other rights or licenses in or to any deliverable, Preexisting Materials, or Infuse Media Group Intellectual Property are granted to or, by implication, estoppel or otherwise, conferred upon Client or any other person, and Infuse Media Group hereby reserves any and all other rights. As used in this agreement, the term “Intellectual Property” means any and all (a) works of authorship, copyrights, inventions (whether or not reduced to practice or patentable), patents, utility models, industrial designs, trademarks and service marks, trade secrets, confidential commercial information, and all other proprietary rights in information, technology, and creations that exist or hereafter come into existence under any law anywhere in the world; (b) registrations, certificates, and applications for any of the foregoing; (c) copies and tangible embodiments of any of the foregoing in whatever form or medium; and (d) remedies for past, present, and future infringements, misappropriations, or other violations of any of the foregoing. All references to a party’s Intellectual Property rights means all Intellectual Property rights owned worldwide by such party or under which such party has the right to grant licenses of the scope granted herein without payment of additional consideration to any third party.
A) Except as otherwise expressly provided in this agreement, each party agrees to keep strictly confidential all confidential and proprietary information disclosed to it by the other party pursuant to this agreement (“Confidential Information”), to protect the confidentiality thereof in the same manner and to the same extent that it protects the confidentiality of similar information of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information), and to use Confidential Information of the other party solely for the proper performance and legitimate purposes of this agreement.
B) The obligations of subsection a above shall not apply to any Confidential Information that the receiving party can demonstrate by contemporaneous written records: (i) was generally known to the public or the industry before its receipt from the disclosing party; (ii) becomes generally known to the public or the industry, without action or omission on the part of the receiving party; (iii) was already known by the receiving party (except by reason of a prior disclosure from the disclosing party where such disclosure was made on a confidential basis); or (iv) was received without any obligation of confidentiality from a person (other than the disclosing party) lawfully having possession of such information and having the right to disclose it.
C) If either party breaches any of its obligations regarding the use or confidentiality of the other party’s Confidential Information, such other party shall be entitled to equitable relief, including, but not limited to, preliminary and permanent injunctive relief, without the necessity of establishing irreparable harm and without the requirement of posting bond or other security.
D) The parties agree to notify each other promptly in writing in the event that any unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction, or use of the Confidential Information of the other party, or any portions thereof, is suspected.
4. LIMITED WARRANTY, DISCLAIMERS, AND LIMITATIONS
A) Limited Warranty; Disclaimer. Infuse Media Group hereby warrants to Client that (i) Infuse Media Group will exercise reasonable skill and diligence in performing the Services and in producing any deliverables described herein or described in any related change orders, and (ii) the deliverables described herein or described in any related change orders will meet the specifications set forth herein or in such change order (the “Limited Warranty”). If, within ninety (90) days after Infuse Media Group performs a Service or delivers any deliverable to Client, Client notifies Infuse Media Group that the Service or deliverable does not comply with the Limited Warranty and specifies the manner(s) in which such Service or deliverable does not comply, Infuse Media Group will investigate such warranty claim and, if it is valid, will at Infuse Media Group’s sole option either (I) make reasonable efforts to correct or re-perform the Service or to make the deliverable comply, for no additional charge, or (II) refund all fees and compensation received by Infuse Media Group for such Service or deliverable, upon return of the deliverable, all derivative products thereof, and all copies thereof to Infuse Media Group, in which case all of Client’s rights and licenses with respect to such deliverable shall terminate and revert to Infuse Media Group. These obligations shall be Client’s sole and exclusive remedy, and Infuse Media Group’s sole obligation, with respect to any breach of the Limited Warranty. EXCEPT AS EXPRESSLY WARRANTED ABOVE, Infuse Media Group PROVIDES ALL SERVICES AND DELIVERABLES “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF Infuse Media Group KNOWS OF SUCH PURPOSE) ARE HEREBY DISCLAIMED AND EXCLUDED.
B) LIMITATION OF LIABILITY. THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE. Notwithstanding any provision of this agreement to the contrary, the maximum liability of Infuse Media Group arising out of or in the connection with this agreement, whether such liability arises from any claim based on breach of contract, warranty, tort, or otherwise, shall in no case exceed the actual fees and other monetary compensation paid to Infuse Media Group by Client. The limitations, disclaimers, and restrictions in this section 4 shall apply, even if any remedy fails of its essential purpose.
A) Infuse Media Group Obligations. Infuse Media Group agrees to defend, indemnify, and hold harmless Client and its directors, officers, employees, and agents against any claims brought by any third party against any of them that any deliverable provided by Infuse Media Group to Client, when used in accordance with this agreement, infringes or violates (i) any patent issued before delivery to Client of the deliverable, respectively or (ii) any Berne convention country copyright, or (iii) misappropriates any trade secret (a “Covered Claim”). If any deliverable as provided by Infuse Media Group to Client is finally adjudged to so infringe, violate, or misappropriate, or in Infuse Media Group’s opinion is likely to be so adjudged, Infuse Media Group shall, at its option, either: (1) procure for Client the right to continue using such deliverable (2) modify or replace such deliverable to make it non-infringing, non-violative, and non-misappropriating, or (3) refund the fees paid by Client for such deliverable, less reasonable depreciation, upon return of the deliverable, all derivative products thereof, and all copies thereof to Infuse Media Group, in which case all of Client’s rights and licenses with respect to such deliverable shall terminate and revert to Infuse Media Group. In addition, Infuse Media Group shall pay all damages and costs finally awarded on the Covered Claim, including without limitation costs and attorneys’ fees, or the amount of any settlement arranged by Infuse Media Group. Infuse Media Group shall have no obligation under this section 5 with respect to any claim arising out of: (I) use of any deliverable in combination with any software, data, content, information, technology or equipment not supplied by Infuse Media Group, but only if the claim arises out of such combination; (II) the modification of any deliverable by anyone other than Infuse Media Group or its contractors; (III) the use of any method(s) or specification(s) that Client requires or requests Infuse Media Group to follow that differ from those of Infuse Media Group; (IV) any unauthorized use, modification, sublicensing, copying, or distribution of any deliverable; or (V) any breach of this agreement by Client. Infuse Media Group’s obligations under this section 5 shall be subject to all of the terms and conditions of this agreement, including without limitation Section 4.b. THIS SECTION 5 STATES THE ENTIRE OBLIGATION OF Infuse Media Group AND THE SOLE AND EXCLUSIVE REMEDY OF CLIENT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS RELATING TO ANY CLAIM OF INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF INTELLECTUAL PROPERTY.
B) Client Obligations. Except for Covered Claims and any other claim that any deliverable provided by Infuse Media Group infringes, misappropriates, or violates third-party Intellectual Property, Client shall defend, indemnify, and hold harmless Infuse Media Group and its officers, directors, managers, members, employees, and agents from and against any and all third-party claims, demands, or causes of action (including without limitation claims for, damages, costs and attorneys’ fees) resulting from, or otherwise arising out of: (i) any use by Client of any deliverable in combination with any software, data, content, information, equipment, or other technology not supplied by Infuse Media Group, but only if the claim arises out of such combination; (ii) the modification of any deliverable by Client; (iii) the use of any method(s), means, or specification(s) that Client requires or requests Infuse Media Group to follow that differ from those of Infuse Media Group; (iv) any unauthorized use, modification, sublicensing, copying, or distribution of any deliverable by Client; or (v) Client’s breach of this agreement
C) Procedures. A party entitled to indemnity under this section 5 shall (i) promptly notify the other party in writing of the indemnified claim, (ii) give the other party sole control of the defense and settlement thereof, and (iii) provide all reasonable assistance in connection therewith, at the indemnifying party’s request and sole expense. The indemnifying party shall not settle or compromise any indemnified claim without the indemnified party’s express, written consent, which consent shall not be unreasonably withheld or delayed. The indemnified party shall have the right to participate, at its sole expense, in the defense of any indemnified claim, through counsel of its own choosing.
A) For Cause. A party may terminate this agreement by notice to the other party: (i) if such other party breaches any of the terms or conditions of this agreement or any change order; or (ii) if such other party generally fails to pay its debts and obligations as they mature, admits in writing its inability to do so, or makes an assignment for the benefit of creditors.
B) Effective Date; Cure. Any termination due to a breach of section 1 (License Rights), 3 (Confidentiality), or 7.a. (Nonassignability) shall be effective on notice. Any other termination shall be effective forty-five (45) days after notice of termination, if the party in default has not cured such default(s) within the forty-five (45) day period, except for Client’s failure to pay any amounts due under this agreement, in which case termination shall be effective five (5) business days after notice if Client has not cured such default.
C) Effect of Termination. On termination of this agreement for any reason, all amounts due and owing to Infuse Media Group shall be accelerated and become immediately due and payable, even if longer or different terms were previously agreed by the parties. Except as otherwise expressly agreed by the parties, all licenses granted by one party to the other under this agreement will remain in force and effect according to their respective terms and conditions. The termination of this agreement shall not affect or impair the right of either party to recover damages or any other remedies occasioned by any breaches of the other party of this agreement.
D) Return of Materials. On termination of this agreement, each party shall promptly return to the other party all of such other party’s property, materials, and Confidential Information provided pursuant to this agreement, except for any deliverables, Confidential Information, or other materials as to which the receiving party has license or other rights under this agreement or otherwise, unless the parties otherwise agree in writing. Instead of returning copies of Confidential Information, the receiving party may destroy them and send written certification thereof to the disclosing party. Notwithstanding these requirements, the receiving party may retain such copies of the other party’s Confidential Information as are required to comply with applicable laws or as necessary to enforce the receiving party’s rights under this agreement. If the receiving party retains any such copies, it shall provide written notice to the disclosing party and the applicable legal requirements for retention. The requirements of section 3 shall apply to any and all retained copies.
7. General Provisions
A) Assignment. Neither party shall assign, transfer, pledge, or encumber any of its rights or delegate any of its duties or obligations under this agreement, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. For these purposes, a change in control, whether through merger, sale of stock, or otherwise, shall be deemed an assignment. Subject to those limitations, this agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
B) Relationship of the parties. The relationship of the parties established by this agreement is that of independent contractors, and nothing contained in this agreement shall be construed (i) to give either party the power to direct and control the day-to-day activities of the other, (ii) to constitute the parties as partners, joint venturers, co-owners, or participants in any joint or common undertaking, or (iii) to allow either party to act as an agent of the other or otherwise to create or assume any obligation on behalf of the other party.
C) Records. Each party agrees to keep all usual and proper records and books of account relating to any and all transactions and other matters contemplated by this agreement.
D) Waiver. No failure by a party to insist on the strict performance of any covenant, duty, agreement, or condition, or to exercise any right or remedy consequent on a breach or default thereof, shall constitute a waiver of any such breach or default or any other covenant, agreement, term, or condition. No waiver shall be effective unless made in writing and signed by a duly authorized representative of the waiving party.
E) Notices. All notices, authorizations, and requests relating to this agreement shall be deemed given (i) five (5) days after being deposited in the U.S. mail, postage prepaid, certified or registered, return-receipt requested; or (ii) one (1) day after being sent by commercial overnight courier, charges prepaid.
F) Taxes: The fees, costs, and other compensation to be paid by Client to Infuse Media Group pursuant to this agreement are exclusive of all applicable taxes, and Client agrees to pay all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees associated with its receipt of the deliverables, and rights hereunder but excluding any taxes on Infuse Media Group’s net income, capital or gross receipts.
G) Non-Solicitation. During the time of performance of the project covered by this agreement, neither party shall solicit, interfere with, or endeavor to entice away any employee of the other party who has been involved in the performance of the project.
H) Independent Developments. Each party will remain free to develop any and all products and Intellectual Property and to work with any third persons as that party in its sole discretion chooses, provided that (i) the party does so independent of the other party’s disclosures and Confidential Information, and (ii) the developing party maintains contemporaneous records that establish the independence of such developments.
I) Construction. The section headings in the agreement are for convenience only and shall not be considered or referred to in interpreting or construing this agreement. This agreement shall be construed as though both parties had drafted it.
J) Compliance with Laws. Each party agrees to comply with all federal, state, local, and foreign statutes, ordinances, regulations, and other laws applicable to the exercise of its rights and the performance of its obligations under this agreement. Without limiting the foregoing sentence, Client acknowledges that any deliverables that Infuse Media Group provides to Client pursuant to this agreement will be subject to United States export controls and agrees strictly to comply with all requirements established by those controls.
K) Remedies. Except as expressly provided in this agreement, no right or remedy herein conferred upon or reserved to a party is exclusive of any other right or remedy, at law or in equity. Nothing in this agreement shall be for the benefit of, or be enforceable by, any third party.
L) Governing Law. The interpretation, construction, validity, and performance of this agreement shall be governed by the laws of the State of Utah, without reference to its conflicts-of-laws rules. The federal and state courts sitting in Salt Lake County, Utah shall have exclusive jurisdiction and venue over any and all disputes arising under or otherwise relating to this agreement, and Client irrevocably consents to the personal jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to this agreement or to any deliverables. In any action or suit instituted under or otherwise relating to this agreement, the party that substantially prevails shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees. The parties hereby agree that neither will request a jury for any dispute arising under or otherwise relating to this agreement.
M) Survival of Terms. The provisions of this agreement that by their nature extend beyond the expiration or termination of this agreement, whether or not expressly stated herein, will survive and remain in effect until all obligations of this agreement are satisfied.
N) Severability. If any provision of this agreement is determined by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, the provision shall be limited, construed, modified or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability or illegality, and the other provisions of this agreement shall remain unaffected and continue in full force and effect.
O) Entire Agreement. This Agreement together with any Change Orders executed by the parties’ authorized representatives pursuant to this agreement, contains the entire understanding and Agreement of the parties with respect to the subject matter hereof and supersedes all prior communications, representations, or understandings, oral, written, or otherwise. This Agreement may not be modified except by mutual written agreement.