OWNZONES MEDIA NETWORK, INC.
ENTERPRISE PLATFORM LICENSE AGREEMENT
STANDARD TERMS AND CONDITIONS
The parties have entered into the Enterprise Platform License Agreement upon the following standard terms and conditions:
- Services. OWNZONES will make the OWNZONES Enterprise Platform available to Company on the terms set forth in the Agreement and the applicable SOF. If Company wishes to add additional services apart from services as defined in the applicable SOF, Company shall submit an order request to OWNZONES. Upon the parties’ fully executing an SOF, OWNZONES shall make the additional services available to the Company on the terms and conditions set forth in the Agreement and each approved additional SOF.
- OWNZONES Content. Subject to Company’s rights herein, as between the parties, OWNZONES shall solely own the OWNZONES Content, including without limitation the copyright therein, and all physical elements, i.e., raw media as well as finished copies, whether in digital or other formats, and other materials provided as part of the OWNZONES Content, subject to any third party rights to elements or licensed materials that may be incorporated into the OWNZONES Content.
- OWNZONES Enterprise Platform. Subject to Company’s rights herein, as between the parties, OWNZONES shall solely own all right, title and interest to OWNZONES Enterprise Platform and any modifications, ideas, or recommendations provided by Company. The Agreement does not convey or transfer any ownership rights in the OWNZONES Enterprise Platform. The OWNZONES name, logo and trade names are trademarks of OWNZONES and no right is granted to use them except as granted herein.
- Company Data. As between OWNZONES and Company, all Company data submitted by Company to the OWNZONES Enterprise Platform (“Company Data”), whether passed by Company or by third parties, or accessed by OWNZONES or its third parties with respect to Company’s usage of the OWNZONES Enterprise Platform or OWNZONES Content, remains the sole property of Company; provided, however, Company agrees that OWNZONES may use aggregate information (without identifying individual Users or Company) about Company usage for internal purposes and when marketing OWNZONES’ services and products to third parties.
- License Grants. Subject to the terms and conditions of the Agreement, OWNZONES hereby grants Company (i) a non-exclusive, non-transferable, right to use the OWNZONES Enterprise Platform for the term of the Agreement, solely for Company’s own internal business purpose and (ii) a non-exclusive, non-transferable, right to use and exhibit the OWNZONES Content solely for Company’s own internal business purpose. Company grants to OWNZONES a non-exclusive, royalty-free, non-sublicense able license to (x) use, copy, transfer, store, modify, display, distribute, exhibit an perform the Company Content, if any, and Company Data solely to the extent necessary to provide the services under the Agreement and (y) use Company’s name, trademarks, tradenames, service marks and logos for OWNZONES’ marketing purposes. All rights not expressly granted to Company are reserved by OWNZONES and its licensors.
- Restrictions. Company may not, directly or indirectly, (i) sublicense, resell, lease, distribute or otherwise transfer rights or usage to the OWNZONES Enterprise Platform for any purpose other than what is contemplated in the Agreement; (ii) modify, copy or make derivative works based on the OWNZONES Enterprise Platform; (iii) disassemble, reverse engineer, or decompile any of the OWNZONES Enterprise Platform or access the OWNZONES Enterprise Platform or copy any ideas, features, functions or graphics of the OWNZONES Enterprise Platform for any purpose other than what is contemplated in the Agreement. (iv) create interest “links” to or from the OWNZONES Enterprise Platform or OWNZONES Content, or “frame” or “mirror” any OWNZONES Content which forms part of the OWNZONES Enterprise Platform (other than on Company’s own internal systems); or (v) use the OWNZONES Enterprise Platform in any manner not authorized by OWNZONES in accordance with the Agreement.
- Withdrawal and/or Limitation of OWNZONES Content. OWNZONES reserves the right, in its sole discretion, to remove or withdraw OWNZONES Content from the OWNZONES Enterprise Platform should the continued distribution of such content give rise to any third party claims. Company acknowledges that the availability of OWNZONES Content may be subject to continued access by OWNZONES under certain agreements and that such agreements may end (and therefore, OWNZONES’ right to such content may end) prior to the term of the Agreement. OWNZONES makes no representation and warranty that any or all OWNZONES Content will be available for the entire term of the Agreement or any SOF.
- Removal of Company Content. OWNZONES reserves the right, in its sole discretion, to remove any Company Content from the OWNZONES Enterprise Platform, which OWNZONES believes may subject it to any claim or liability. Company shall at all times ensure that the Company Content complies with OWNZONES Acceptable Use Policy.
- Company Representations and Warranties. Company represents and warrants as follows: (i) Company has the right, power and authority to enter into the Agreement and to perform its obligations hereunder; (ii) Company shall pay all monies required to be paid by Company to OWNZONES; (iii) Company shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the OWNZONES Enterprise Platform, and notify OWNZONES promptly of any such unauthorized use; (iv) Company shall comply with all applicable local, state, federal, and foreign laws in using the OWNZONES Enterprise Platform and (v) OWNZONES’ distribution of Company Content in accordance with this Agreement will not violate or infringe any rights of any third party, including without limitation any third party intellectual property rights, contract rights, moral rights, (or similar rights in any jurisdiction), rights of publicity, and rights of privacy, or defame or constitute unfair competition against such third party.
- OWNZONES Representations and Warranties. OWNZONES represents and warrants as follows: (i) OWNZONES has the right, power and authority to enter into the Agreement and to perform its obligations hereunder; (ii) the OWNZONES Content is original to OWNZONES or has been duly licensed or purchased from the party that owns or has the right to license or sell such material for purposes of this Agreement; and (iii) OWNZONES shall provide the OWNZONES Enterprise Platform and services in a manner consistent with general industry standards.
- Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, OWNZONES DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND THE OWNZONES ENTERPRISE PLATFORM, OWNZONES CONTENT AND ALL OTHER MATERIAL AND SERVICES ARE PROVIDED BY OWNZONES HEREUNDER IS PROVIDED “AS IS” AND WITHOUT WARRANTY OR REPRESENTATION. OWNZONES DOES NOT WARRANT THAT THE OWNZONES ENTERPRISE PLATFORM OR SERVICES WILL BE INTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
- Limitations of Liability. in no event will either party be liable for any incidental, indirect, special or consequential damages for any claim arising under the Agreement, regardless of the cause of action and even if a Party has been advised of the possibility of THOSE damages. Except FOR obligations arising under Section 8 (Indemnification), THE AGGREGATE LIABILITY OF ownzones IN CONNECTION WITH THe AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND THEORY, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY COMPANY TO OWNZONES DURING THE ONE-YEAR PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
- Indemnification. Each party shall indemnify, defend and hold the other party, and its officers, employees and agents, harmless from and against any loss, cost, damage, liability, judgment or expense brought by a third party (a “Claim”), arising out of or related to the breach of such party’s obligations, representations or warranties under the Agreement. Each party shall promptly notify the other party in writing of any Claims and shall reasonably cooperate in the defense or prosecution of any action relating to the Agreement. Each indemnified party reserves the right to be represented by counsel of its own choosing, at its own cost and expense.
- Suspension. If OWNZONES believes or it is determined that the OWNZONES Enterprise Platform may violate a third party’s intellectual property rights, OWNZONES may choose in its discretion to: (i) modify the OWNZONES Enterprise Platform to be non-infringing; (ii) obtain a license for Company to allow for continued use; or (iii) terminate the license for the OWNZONES Enterprise Platform and require its return from Company and Users. OWNZONES has no obligation to indemnify, defend or hold Company or any User harmless: (A) if the OWNZONES Enterprise Platform is altered or modified by anyone other than OWNZONES, or used outside the scope of use identified in the software documentation or this Agreement or any SOF; (B) if Company or any User continues to use a version of the OWNZONES Enterprise Platform which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the OWNZONES Enterprise Platform which was provided to Company or User; (C) to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by OWNZONES; or (D) to the extent an infringement claim is based upon the combination of the OWNZONES Enterprise Platform with any products or services not provided to Company or User by OWNZONES.
- Confidentiality. Except as may be required by law or legal process, each party will keep confidential and will not disclose to any third party, other than such legal, accounting and financial advisors who have a need to know such information for the purposes of the Agreement, any proprietary, non-public information that such party has obtained from the other party with respect to the Agreement or such other party or its business, all of which will be treated as confidential and proprietary information of the disclosing party. Each party will inform its personnel assigned or engaged for the performance of the Agreement, of these obligations of confidentiality and non-disclosure. Information will not be deemed to be confidential information if: (i) it was already known to the party prior to disclosure by the other party; (ii) it is publicly available; (iii) it was obtained from a party that was not under an obligation of confidentiality with respect to such information; or (iv) it was independently developed by such party without reference to confidential information provided by the other party.
- Fees and Payment. Company shall pay OWNZONES all fees and amounts due in accordance with the terms of the Agreement and any applicable SOF. All fees are quoted in United States Dollars. Fees are non-refundable and are based on the terms of the applicable SOF, not the extent of actual usage.
- Audit. OWNZONES shall have the right to audit the books and records of Company to ensure compliance with the terms of the Agreement, including without limitation, to determine whether Company has paid the appropriate level of fees as set forth in any applicable SOF based on the number of Users. If there is any shortfall in the amount of fees paid, then Company agrees to immediately pay OWNZONES any such shortfall and if such shortfall is more than seven percent (7%), then Company shall also pay for the cost of such audit. OWNZONES’ right to conduct an audit is once each twelve (12) month period.
- Notices. Notices hereunder shall be given in writing, addressed and delivered to the other party at the address specified on page 1, or such other address as may be designated from time to time in writing by such party, as follows: (i) via certified U.S. mail; (ii) via personal delivery, facsimile, or express mail by a nationally recognized courier, in each case with written confirmation of receipt; or (iii) via electronic mail, with written confirmation of delivery and a confirmation copy delivered by any of the above-listed methods of delivery. Notices shall be deemed given as of the date of confirmation of delivery.
- Publicity / Promotions. OWNZONES shall have the right to include Company in public announcements (including press releases and/or promotional announcements) regarding the Agreement.
- Assignment. The Agreement cannot be assigned by either party without the written consent of the other party, except OWNZONES shall have the right to assign the Agreement connection with a merger, acquisition, restructuring, or sale of all or substantially all of the assets of OWNZONES or to an affiliate of OWNZONES.
- Independent Contractors. OWNZONES and Company are acting hereunder as independent contractors. Neither party shall be considered or deemed to be an agent, employee, joint venture or partner of the other party.
- Default; Termination. In the event of a default by either party hereunder, the other party shall give written notice of such default and the defaulting party shall have thirty (30) days in which to cure such default. If the defaulting party fails to cure such default on or prior to the end of such thirty (30) day period, then the non-defaulting party may, upon written notice to the defaulting party: (i) terminate the Agreement, in whole or in part by written notice to the defaulting party; and (ii) pursue any remedies it may have at law or in equity, subject to the terms and conditions of the Agreement. The dissolution, bankruptcy, insolvency, assignment for the benefit of creditors or any other similar proceeding entered into by a party constitutes a default by such party under this Agreement.
- Force Majeure. OWNZONES shall not be considered in default under this Agreement if there is down time of the OWNZONES Enterprise Platform caused by circumstances beyond OWNZONES’ reasonable control, including without limitation, acts of God, acts of governments, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures or delays involving hardware or software not within OWNZONES’ possession or reasonable control, network intrusions or denial of service attacks, but not if such unavailability is the result of OWNZONES failing to exercise reasonable care and due diligence to avoid or mitigate the same in anticipation of or an response to such causes.
- Miscellaneous. The Agreement constitutes the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect thereto. If any term of the Agreement is found to be invalid, illegal or unenforceable, the remainder of the Agreement shall not be affected, and the Agreement shall be construed in a manner that is valid, legal and enforceable. The Agreement cannot be modified except in writing executed by both parties. No waiver by any party shall be effective unless in writing and signed or confirmed in writing by the party to be charged with such waiver. The Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to its conflict-of-law provisions. Any action relating to the Agreement must be brought in the federal or state courts having jurisdiction and venue in or for the courts located in Maricopa County, Arizona, and the parties irrevocably consent to the personal jurisdiction of such courts and waive any objection based on forum non conveniens. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same document. Facsimile copies and scanned or .pdf copies of signed agreements may be treated as originals of the Agreement.