READ CAREFULLY THIS SERVICE AGREEMENT ("AGREEMENT"), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN BRINGHUB, INC. ("COMPANY"), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICE, "CUSTOMER"), REGARDING ACCESS AND USE OF COMPANYS SMARTCART, A PROPRIETARY APPLICATION THAT ALLOWS CUSTOMERS READERS OR USERS OF CUSTOMERS CONTENT TO BUY PRODUCTS FROM MULTIPLE RETAILERS AND VENDORS, DIRECTLY FROM CUSTOMERS SITE, THROUGH A SINGLE, SECURE SHOPPING CART AND CHECKOUT SYSTEM ("SERVICES"). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER. BY SELECTING THE "ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICE ("ACCEPTANCE"), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. FOR THE PURPOSES OF THE TERMS BELOW AND CONDITIONS IN THIS AGREEMENT, THE "ORDER FORM" SHALL MEAN THE ORDER PAGE ON THE COMPANYS WEBSITE TO WHICH THE SERVICES RELATE.
IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE "DO NOT ACCEPT" BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE
1.1. Limited-Right to Use. Company grants to Customer a limited right to install the Software onto a server operated and under the direct control of Customer; and to operate the Software solely for its internal use and in accordance with any standard documentation or specifications provided by Company in connection with the Software. This right is effective only during the Term, is limited, non-exclusive and non-assignable, and may not be sublicensed, in whole or in part. The scope of this license is defined by the terms and conditions of this Agreement, and this right is granted subject to those terms and conditions.
1.2. No Implied Licenses. Customer acknowledges that there are no rights or licenses granted by implication under this Agreement. Company reserves all rights that are not expressly granted. Customer acknowledges that, as between the Parties, Company owns all intellectual property rights and proprietary interests that are embodied in, or practiced by, the Software, its associated documentation and Services.
1.3. Restrictions on Scope of Right to Use. Customer agrees not to act outside the scope of the rights that are expressly granted by Company in this Agreement. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of its end users and customers; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Specifically, but without limitation, Customer will comply with the notice, "opt out" and other provisions of the following California laws: California Business and Professions Code Sections 17538.4 and 17538.45. Customer may not use any automatic tools, including, but not limited to, bots or scripts to access or use the Services. Customer may not export or re-export any full or partial copies of the Software or documentation outside the United States of America, unless it first obtains any and all licenses and permits that may be required from governmental authorities and shall comply with all export control restrictions applicable the Software. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customers use of Services or violation of this Agreement.
2.1. Fees. Customer will pay Company the then applicable fees, if any, for the Services (the "Fees"). Currently there are no Fees or applicable charges for the Services. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees, upon thirty (30) days prior notice to Customer (which may be sent by email).
2.2 Operating Expenses. Customer shall bear its own expenses in connection with exercising its rights or performing its obligations under this Agreement, including, without limitation, any and all expenses incurred in connection with evaluation and testing of the Software.
Customer acknowledges that, in the course of using the Software and performing its duties under this Agreement, Customer may obtain or create information relating to the Software and/or to the Services ("Confidential Information"). Such Confidential Information shall belong solely to Company and includes, but is not limited to, the existence of the Software, its features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, equipment design and architecture, computer code, internal documentation, design and function specifications, equipment requirements, problem reports, analysis and performance information, equipment documents, and other technical, business, marketing and financial information, plans and data. For sake of clarity, information is considered Confidential Information for so long as it has not been made known to the general public by Company or through the rightful actions of a third party, and for so long as the information holds value, as reasonably determined by Company, by virtue of remaining confidential. During the Term and after its termination Customer: (a) shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information without the prior written consent of Company, or unless such Confidential Information becomes part of the public domain without breach of this Agreement by Customer, its officers, directors, employees or agents, (b) agrees to take all reasonable measures to maintain the Confidential Information in confidence, but not less than those it takes to safeguard its own confidential information; and (c) will disclose the Confidential Information only to those of its employees and consultants as are necessary for the uses licensed hereunder and are bound by obligations of confidentiality. Customer acknowledges and agrees that due to the unique nature of Companys Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, upon any such breach or threat thereof, Company shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. Upon the termination of this Agreement, Customer shall return or destroy all Confidential Information, as requested by Company.
4.1. Representations and Warranties.
Customer represents that (i) it has the authority to enter and perform this Agreement under applicable law and under its articles of incorporation, bylaws and/or other governance documents and (ii) it has secured all of the necessary permissions and consents from the Consumers using its website to provide Company access to, and use of, any Consumer Information generated using the Services. Customer warrants that all of its representations above will remain true throughout the term of this Agreement; and that full performance of its duties under this Agreement will not conflict with its performance under any other legally binding agreement. Customer agrees that, in the event that any of its representations or warranties under this Agreement ceases to be true or accurate, it will promptly notify Company.
4.2. Warranty and Disclaimer. Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Companys reasonable control, but Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
4.3. Force majeure. Company shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Company. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
4.4 Limits of Contractual Liabilities.
IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THE POSSESSION OF, USE OF, OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM OR LIABILITY IS BASED UPON ANY CONTRACT, TORT, BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE GREATER OF, (i) $10.00 OR (II) THE FEES PAID TO COMPANY HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5.1. Term. The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect until terminated by either party pursuant to the provisions of this Agreement (the "Term").
5.2 Termination for Breach. Either party may terminate this Agreement upon thirty (30) days notice to the other party if the other party breaches any of its material obligations under this Agreement.
5.3. Termination for Convenience. Company may terminate this Agreement for any, or no reason, upon fifteen (15) days notice to Customer.
5.4 General consequences of termination. Effective immediately upon expiration or termination of this Agreement, (i) all rights granted under this Agreement will become void, (ii) Customer shall cease all use of the Software and shall destroy all copies of the Software and associate documentation in its possession, and (iii) Customer will not have continuing rights to use any Confidential Information or to exercise any intellectual property rights having been granted under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, but no more than five (5) business days, Customer will discontinue its use and will return the Confidential Information and proprietary materials of Company.
5.5. Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Sections 1.2, 1.3, 1.4, 3, 4.4, 5.4, 5.5 and 7. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely.
Company is constantly working to improve its Services and the terms under which they are offered, so these terms of this Agreement may need to change from time to time. Accordingly, Company reserves the right to unilaterally change this Agreement at any time, in which case Company will provide notice by posting on the Company website, in an email, and/or by some other means. If Customer does not agree with the revised terms, it is free to reject them, in which case Customer will no longer have any right to use the Services beyond the time period it has paid for prior to that notice. If Customer uses any Services in any way after a revision is effective, that use will constitute acceptance of that revision.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Companys prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement will be construed under the laws of the State of California, without regard to conflicts of law provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Los Angeles County, California, or the Central District of California. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys fees.