Last Updated March 23, 2017
MASTER TERMS AND CONDITIONS
The following master terms and conditions (“Terms and Conditions”) are a part of that certain Billing Agreement (collectively referred to as the “Agreement”) by and between Bridg, Inc. having a principal place of business at 11390 Olympic Boulevard, Suite 450, Los Angeles, California 90064 (“Bridg“) and the Client identified on the first page of the Billing Agreement. Bridg and Client are each referred to herein as a “Party” and collectively as the “Parties“.
GENERAL TERMS AND CONDITIONS
“Affiliate” means a person or entity controlling, controlled by, or under common control with a stated party. For purposes of this Agreement, a Party shall be deemed to have “control” over another person or entity if: (a) such person or entity directly or indirectly, on its own or acting through one or more persons or entities possesses a majority of the voting power with respect to such person or entity; or (b) such person or entity controls the management or operations of such other person or entity, including, but not limited to, by contract.
“Aggregate Results” shall have the meaning set forth in Section 3.3.
“Applicable Law” means all laws, rules, statutes, decrees, orders, regulations, judgments, codes and requirements of any government authority (federal, state, local or international) having jurisdiction over and applicable to a Party hereunder.
“Billing Agreement” means the document describing the product licensed and services to be performed by Bridg for Client which are governed by these Terms and Conditions.
“Bridg Client” means the software client that is installed by Client and which shall interface with the POS system of Client and communicate with the Bridg Platform via API calls.
“Bridg Data Assets” means the database compiled and hosted by Bridg and any and all data, scripts, data schema, algorithms, trends, analytics and other assets that are developed by Bridg, either specifically for Client, as part of the Services or otherwise, and which may be used to convert the Client Data into refined data.
“Bridg Platform” means the front-end hosted platform solution that is owned and operated by Bridg, and that will be made available to Client as a hosted service in accordance with the Agreement, the specific elements of which are set forth on the Billing Agreement and in Section 2.1 below. The Bridg Platform includes but is not limited to the email communication platform, use of certain web applications information or other platform technology used to provide the Products and Services set forth in the Solutions Agreement.
“Bridg Materials” means collectively, the Bridg Client, the Bridg Platform, the Bridg Data Assets, the Deliverables, all ideas, concepts, inventions, systems, platforms, software, interfaces, generic functions, documentation, tools, utilities, templates, forms, reports, techniques, methods, processes, algorithms, know-how, trade-secrets, utilities, templates, forms, marketing materials, and other technologies and information acquired, created, developed or licensed by Bridg, and any improvement, modification, extension, Updates or Upgrades or other Derivative Works thereof and all Intellectual Property rights thereto. For clarity, the Bridg Materials include (without limitation) the Bridg Data Assets, the Services, Results and Aggregate Data.
“Client Data” means all raw data sets in the possession of Client either prior to the Effective Date of the Agreement or which is collected by Client during the Term (other than collection by Bridg) which is provided by Client to Bridg for analysis and processing.
“Confidential Information” shall have the meaning set forth in Section 6.
“Deliverables” means all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Client in the course of performing the Services and are items identified as such in the Agreement. For the avoidance of doubt, the Deliverables may sometimes include the Reveal Insights report.
“Derivative Works” shall have that meaning set forth under the Copyright Act of 1976, as amended (Title 17 of the USC Section 101). For the avoidance of doubt, any results derived or learned from the Bridg Platform processing the Client Data, (including in aggregate form), is deemed a Derivative Work hereunder and shall be owned by Bridg.
“Intellectual Property Rights” means, on a worldwide basis, any and all now in existence or hereafter created tangible and intangible patents, inventions, copyrights, trademarks, mask works, moral rights, trade secrets, proprietary information or any other intellectual property rights, including all applications and registrations with respect thereto.
“Personnel” means any employees and/or independent contractors of either Party.
“Product” means a specific feature or functionality of the Bridg Platform (e.g. Reveal, Email, Promotions, etc.), access to which is purchased as part of Client’s subscription to the Bridg Platform, as expressly indicated on the Solution Agreement.
“Results” shall have the meaning set forth in Section 3.3.
“Services” shall mean those professional services that Bridg provides to Client pursuant to a mutually agreed statement of work that is executed by the parties.
“Statement of Work” or “SOW” shall mean that writing that sets forth the mutually agreeable obligations of the parties with respect to the Services and such SOW is governed by these Terms and Conditions and is hereby incorporated by reference into the Agreement.
“Term” shall have the meaning set forth in Section 13.1.
“SLA” means the service level agreement concerning service levels which shall apply to the performance of the specific Product or Service, as set forth in the Agreement.
“Term” shall have the meaning set forth in Section 13.1
“Territory” means the United States excluding its territories and protectorates.
“User” means any Personnel of Client to whom Client has supplied or directed Bridg to supply a user identification and password to access use of the Bridg Platform.
“Update(s)” means modifications to the Bridg Platform generally offered to address bugs, errors and similar functional problems, and shall include fixes, patches, error corrections, service packs, additions, minor version releases, and any other minor revisions. Updates do not include any unique modifications or version offered to a particular client or which are generally provided for a separate fee, unless otherwise agreed by the parties in this Agreement.
“Upgrade(s)” means significant modifications or enhancement of software to include new features or functionality. Upgrades are typically offered for a charge and are typically designated by a change in the whole number position from the prior version (e.g. from 2.3 to 3.0), unless otherwise agreed by the parties in this Agreement.
2. PLATFORM SERVICES
2.1 Provision of Access. Following the Effective Date and for the duration of the Term, Bridg shall provide and make available to Client access to use the Bridg Platform, in a hosted software-as-a-solution form, solely for the data analysis, data accretion, data reporting, intuitive trend analysis, learned data analysis, marketing analysis functionality and other Bridg functionality as referenced in the applicable Billing Agreement in accordance with the terms of this Agreement (collectively the “Bridg Platform”). Such access shall be for the number of users, queries, Reports (as defined below), or other components as set forth in the Billing Agreement. For the avoidance of doubt, Client acknowledges that it shall be responsible for any internet or network connectivity required to access the Bridg Platform.
2.2 Modification of Purchased Solutions. Client acknowledges that Bridg will modify the Bridg Platform from time to time, including but not limited to providing Updates, adding or deleting features and functions, in an effort to improve Client’s experience. Bridg will not make changes to the Bridg Platform that materially reduces the functionality of the Bridg Platform provided during the Term.
2.3 Protection of Client Data. Bridg will, directly or through its subcontractors, maintain administrative, physical and technical safeguards to ensure the security, confidentiality and integrity of Client Data in a manner that is compliant with Written Information Security standards. Those safeguards will include, but not be limited to, measures for preventing access, use, modification or disclosure of Client Data by Bridg’s Personnel except (i) to effectuate the purposes of this Agreement (including any SOW hereunder), (ii) as compelled by law, (iii) as otherwise may be permitted by Client in writing.
2.4 Bridg Client. Following the Effective Date, Bridg shall provide the Bridg Client to Client for installation by Client onto its POS system solely to communicate and transmit Client Data to the Bridg Platform. Bridg shall have no liability for Client’s installation of, or failure to properly install, the Bridg Client.
3. Use of the Platform
3.1 Data Delivery. Subject to the terms of this Agreement, each Party agrees to deliver, or cause to be delivered, to the other Party the respective data expressly identified on the Billing Agreement.
3.2 Client Responsibilities. Client will (a) make best efforts to ensure the accuracy, quality, integrity, legality, and reliability of Client Data (b) ensure that the Client Data is collected without violation of Applicable Law; (c) ensure that Client has the appropriate rights from the appropriate party to disseminate such Client Data to Bridg hereunder; (d) use reasonable efforts to prevent unauthorized access to, or use of, the Bridg Platform or any component thereof, and notify Bridg promptly of any such unauthorized access or use; (e) use the Bridg Platform only in accordance with Applicable Law.
3.3 License to Bridg. Client hereby grants to Bridg a non-exclusive, non-transferable, royalty-free, irrevocable, license to:
(i) use, access, copy, store, create Derivative Works of and process Client Data, including but not limited to, for the purposes of Bridg providing the Bridg Platform, the Deliverables, and (if applicable) the Services;
(ii) use, copy, modify, create Derivative Works of Client Data for the purpose of creating, publishing, and disclosing Aggregate Data (defined herein) in a manner that does not directly or indirectly identify Client or any individual person. For purposes of this Agreement, any results derived or learned from processing the Client Data (including any data that may be deemed the Confidential Information of Client) using the Bridg Platform shall be deemed the “Results”, and in aggregate form shall be the
“Aggregate Results”. Bridg shall own the Results and the Aggregate Results, and each may be combined with other data to create compilations and analysis of such data, and shall be deemed a Derivative Work hereunder; and
(iii) use and reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, trends, processes and techniques) related to the Results or which are otherwise acquired during provision of the Bridg Platform, the Deliverables, or any Service hereunder (including without limitation, that which it could have acquired performing the same or similar services for another customer);
(iv) use, duplicate, disseminate, publish, and perform the Client logos, trademarks, service marks and creative assets (“Client Marks”) solely to effectuate the purpose of this Agreement (including but not limited to any SOW hereunder) and in connection with the Bridg Platform, provision of the Deliverables and performance of the Services hereunder.
3.4 License to Client. Subject to the terms of this Agreement, Bridg grants to Client a limited, non-exclusive, personal, non-transferable, non-sublicensable, non-assignable license during the Term of this Agreement
(i) to access and use the Bridg Platform pursuant to Applicable Law;
(ii) to access and use the Results and Aggregate Results for Client’s internal use in accordance with Applicable Law; and
(iii) to use the Deliverables for Client’s internal use in accordance with Applicable Law and any restrictions communicated on such Deliverables by Bridg in writing.
(iv) If so indicated on the Billing Agreement, to use the Reveal Insights Deliverable both during the Term and following the termination or expiration of this Agreement permanently subject to the terms of this Agreement provided however that such use shall be for Client’s internal business and marketing evaluations and activities.
3.5 Usage Guidelines & Restrictions. Client will not:
(a) make the Bridg Platform or any component thereof available to, or use the Bridg Platform or any component thereof for anything other than in connection with Client’s internal marketing and sales activity for Client’s sole benefit;
(b) sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Bridg Materials or any component thereof;
(c) interfere with or disrupt the functionality of the Bridg Platform, the Bridg Client or any component thereof;
(d) attempt to gain unauthorized access to Bridg Platform, the Bridg Data Assets or any related systems or networks;
(e) copy any part, feature, function or user interface encompassed within the Bridg Materials, including but not limited to the Bridg Platform;
(f) reverse engineer any part of Bridg Platform or any Aggregated Results (to the extent such restriction is permitted by Applicable Law);
(g) use the Bridg Materials, the Services, or any Deliverables hereunder in any unlawful manner or in a manner that could damage, disable, overburden or impair any products or services of Bridg;
(h) collect or harvest any personally identifiable information, including account names from the Bridg Platform, the Deliverables, or Services without the express prior written consent of the Bridg;
(i) use the Bridg Materials in connection with (1) racial, ethnic, gender, age, religious, political, or sexual orientation discrimination; (2) investment or business opportunities or any activity prohibited by Applicable Law; (3) obscenity, profanity, or pornography (4) defamatory, abusive or threatening language, images or content; (5) hacking, spoofing, phishing or phreaking; or (6) benchmarking.
(j) retain any instances or derivatives of the Bridg Materials in any form after expiration or termination of this Agreement, and Client agrees to permanently delete all Bridg Materials from its records and systems immediately (and provide written certification of such destruction) upon any termination or expiration of this Agreement unless otherwise expressly agreed in any Billing Agreement.
Nothing in this Agreement shall restrict Bridg from its use of any information collected through the Bridg Platform, with the exception of any Client Data in the form provided by Client. Further, Client agrees to limit the use and access to the Bridg Platform to such of Client’s Personnel as are directly involved in the utilization of the Bridg Platform and Deliverables and who are contractually bound to safeguard the information in a manner no less stringent than as set forth in this Agreement.
3.6 No Other Licenses or Rights Granted. Except for the limited rights and licenses expressly granted hereunder, no other license is granted by either Party.
3.7 Use of Marks and Publicity. Bridg may use Client’s Marks on its website or marketing material solely for testimonials, case studies or customer listing displays and provided that Bridg may not modify, alter or obscure Client’s Marks. Subject to the prior written approval of Client, Bridg may issue a press release announcing the collaboration between the Client and Bridg described in this Agreement.
4. Fees & Payment
4.1 Fees. Client shall pay Bridg the fees specified in the Billing Agreement and any Statement of Work entered into by the parties. Except as otherwise specified herein or in a Billing Agreement (a) Bridg Platform fees are based on a twelve (12) month Term subscription purchased and not actual usage, (b) fees for Services shall be governed by the applicable SOW for such Services and (c) payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Invoicing and Payments. Client authorizes Bridg to use the method of payment indicated on the Billing Agreement for all fees listed for the Term of the Agreement.
4.3 Overdue Payments. If any such payment is not paid in full when due, in addition to any other remedy otherwise available to Bridg, interest may be imposed by Bridg on overdue charges and payments at the rate of 1.5% per month or the maximum amount permissible by Applicable Law, whichever is greater, until Client is current on all payments. Additionally, Bridg shall have the right to suspend access to the Bridg Platform and suspend performance of any Services until any outstanding amounts are fully paid by Client.
4.4 Taxes. Any taxes, duties, excises or tariffs imposed on costs and fees paid for under this Agreement shall be the responsibility of Client, excluding any taxes on the income of Bridg.
5. Proprietary Rights
5.1 Pre-Existing Rights. Except as explicitly set forth herein, neither this Agreement nor the provision of the Bridg Platform, the Bridg Client, any Deliverables or Services hereunder, will give Client or Bridg any ownership interest in or rights to the Intellectual Property of the other Party, including without limitation any information and data collected or maintained by either Party. All Intellectual Property Rights that are owned by a Party at the commencement of this Agreement will remain under the ownership or control of such Party throughout the Term of this Agreement and thereafter. Bridg is and shall remain the sole and exclusive owner of the Bridg Materials, the Services, and the Derivative Works of any Client Data that are created by Bridg (via the Bridg Platform or otherwise) including, without limitation, all patent, copyright, trade secret, trademark, tradename, and other Intellectual Property rights therein. Client is, and shall remain the sole and exclusive owner of all Client Data. Further, to the extent Bridg performs any Services, provides any Deliverables or creates any intellectual property pursuant to the provision of the aforementioned, unless otherwise agreed by the parties in writing, Bridg shall retain all right, title and interest to all Intellectual Property Rights or other proprietary rights relating to the same.
5.2 Deliverables. Client acknowledges that unless otherwise set forth expressly in writing mutually executed by the Parties, any Deliverables, Services, Results, or Aggregated Results hereunder shall not be considered “work-made-for-hire” for Client.
6.1 Definition; Non-disclosure. Each party agrees to hold the Confidential Information of the other party in strict confidence, and not to use or disclose such Confidential Information, except as permitted hereunder. “Confidential Information” means any and all technical and non-technical information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) under this Agreement and related to the past, present or future business or technology of the Disclosing Party, including without limitation information constituting or concerning research, development, processes and methodologies; product architecture, designs and specifications; software, whether human-readable or machine-readable; customer data, Reports, product, marketing, sales and business development plans and strategies; competitive analyses; financial analyses and forecasts; cost and pricing data; procurement requirements and vendor information; customers and prospects; licensing and distribution arrangements; and third party information that the Disclosing Party is obligated to maintain in confidence. For the avoidance of doubt, the Confidential Information of Bridg shall include, without limitation, any and all information regarding the Bridg Materials, the Results and the Aggregate Results, whether or not marked or identified as confidential. The relationship between the Parties and the fact and substance of this Agreement shall also be Confidential Information. The Disclosing Party shall mark all Confidential Information in tangible form “confidential” or “proprietary” or with words of similar import, and should identify as confidential at the time of disclosure any Confidential Information disclosed orally or in another intangible form. Regardless of whether so marked or identified, any information that the Receiving Party knew or should have known was considered confidential or proprietary by the Disclosing Party, including without limitation information learned by the Receiving Party upon visual inspection of the Disclosing Party’s premises, will be considered Confidential Information of the Disclosing Party under this Agreement.
6.2 Exclusions. Neither party shall have any obligation under this Section 6 with respect to any information that it can prove is (i) now or hereafter, through no unauthorized act or failure to act on the Receiving Party’s part, in the public domain; (ii) known to the Receiving Party without an obligation of confidentiality effective at the time the Receiving Party received the same from the Disclosing Party, as evidenced by written records; (iii) hereafter furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure; or (iv) independently developed by the Receiving Party. Neither party shall disclose the terms of this Agreement or make any announcements regarding the nature of the relationship between the Parties without the prior written approval of the other Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (a) assert the confidential nature of the information to the agency; (b) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (c) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
6.3 Restriction on Use and Disclosure. Receiving Party agrees not to disclose the Confidential Information to anyone without the prior written consent of the Disclosing Party, other than its Personnel and professional advisors with a need to know the Confidential Information in order to carry out the purpose of this Agreement and who agree to be bound by Receiving Party’s obligations under this Agreement with regard to nondisclosure and use of such Confidential Information.
6.4 Standard of Care. Receiving Party agrees to employ, with regard to the Confidential Information, procedures and means that are no less restrictive than the procedures and means used by it to protect its own confidential and proprietary information of similar sensitivity and that in no event are less than a reasonable standard of care.
6.5 Required Disclosures. If the Receiving Party becomes legally compelled to disclose any of the Disclosing Party’s Confidential Information, Receiving Party shall (i) promptly notify the Disclosing Party of such requirement before any disclosure is made so that the Disclosing Party may seek a protective order or other appropriate remedy limiting disclosure or use of such information; and (ii) provide reasonable assistance to the Disclosing Party to seek such remedy at the Disclosing Party’s expense. If such protective order or other remedy is not obtained, the Receiving Party may furnish only that portion of such Confidential Information that, in the written opinion of its legal counsel, it is legally required to disclose, and the Receiving Party agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.
6.6 Survival of Confidentiality Obligations. The obligation of the Receiving Party to maintain the confidentiality of the Confidential Information as set forth in this Agreement shall survive any termination or expiration of this Agreement for any reason for a period of five (5) years from the Effective Date, with the exception of any trade secrets which shall remain subject to the terms of confidentiality hereunder until they no longer are deemed trade secrets under applicable Laws.
6.7 Non-Solicitation of Personnel. During the Term and for a period of one (1) year from the date of its termination of this Agreement, neither Party will directly or indirectly solicit for employment any employee of the other Party, without such Party’s prior written consent Notwithstanding the foregoing, neither Party shall be prohibited from hiring an employee in response to a general advertisement for employment (including but not limited to LinkedIn job advertisement) provided that it had no actual knowledge, after due inquiry, was employed by the other Party.
7.2 Deletion of Data Upon Termination. Upon expiration or termination of this Agreement, and upon receiving written request by Client, Bridg will delete and eliminate, within 30 days following such expiration or termination, all Client Data stored within Bridg’s databases or otherwise held by Bridg. Bridg shall have no obligations to delete any Results or Aggregate Results.
7.3 Additional Data Security Provisions. Bridg shall during all such times that it retains any applicable Client Data, comply with the Applicable Laws of the United States as to the processing of such Client Data by Bridg as contemplated herein.
7.4 SLA. Bridg shall use commercially reasonable efforts to ensure that the Bridg Platform is available to access 99.9% of the time (“Uptime”). Client agrees that Bridg will not be in breach of any SLA, or other obligation under the Agreement, and that calculation of Uptime shall exclude any time that the Bridg Platform is unavailable due to or resulting from (i) Client’s incorrect installation or failure to install the Bridg Client; any third party; (ii) hardware, software, data or deliverables other than those provided by Bridg; (iii) third party ISP, Carriers (as defined below), networks or other infrastructure. For any consecutive 24 hour period of the month in which Bridg fails to achieve the Uptime, Client may request in writing, and will receive a proportionate credit of the applicable subscription fee for that portion of the month in which the failure occurred up to a maximum of 100% of the applicable month’s subscription fee (“SLC”). In the event Bridg fails to meet the SLA for a consecutive 48 hour period in three (3) or more consecutive months, Client shall have the right to terminate this Agreement without penalty for early termination. The SLC is Client’s sole and exclusive remedy for Bridg’s failure to meet the SLA. Client shall remain liable for any subscription fees due for the Bridg Platform prior to such termination.
8. Email & MOBILE
8.1 Sending Email via Bridg Platform. Client agrees to comply at all times with all Applicable Laws relating to the email communications sent using the Bridg Platform including but not limited to the identification of the sender and inclusion of the capability of a user to unsubscribe from email communications. Client shall not send via the Bridg Platform (a) infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) any unsolicited commercial or non-commercial communication in violation of Applicable Laws, including but not limited to the CAN-SPAM Act; or (c) any messages to recipients at addresses’ obtained through list rental, list purchase, or opt-out email append methodology. Client will only send email messages to those recipients: (i) who have given Client consent pursuant to Applicable Law to send them such messages; or (ii) which messages are authorized pursuant to Applicable Laws (including but not limited to “transactional or relationship messages” as contemplated by the CAN-SPAM Act). Client understands and acknowledges that although Bridg may provide a portfolio of ‘self-service’ email templates or other Bridg Materials for use by Client in conjunction with the Bridg Platform: (A) Bridg has no obligation to review message content, recipient addresses or other Client Data for any reason; (B) Bridg may, in its reasonable discretion, refuse to distribute any message that Bridg reasonably believes is defamatory, infringing, otherwise unlawful, or is in violation of this Agreement; (C) all recipient addresses are supplied solely by Client and Bridg has no obligation to supply or “scrub” any message recipient list other than to process unsubscribe and/or opt-out requests as submitted to Bridg via the Bridg Platform (when elected as part of the Billing Agreement); and (D) Client is responsible for all aspects of the email campaigns including but not limited to the creation, initiation and sending of messages via the Bridg Platform, the content, recipients, and timing of such messages.
8.2 Sending Mobile Text Messages via the Bridg Platform. Client shall (a) be responsible for ensuring that any text messages sent directly or indirectly by Client comply with all Applicable Laws now or hereafter in effect, including but not limited to the Telephone Consumer Protection Act (“TCPA”); and (b) send messages only to those recipients who have granted permission to Client (or otherwise directly “opted-in”) to receive such message(s) in accordance with Applicable Law.
8.3 Email and Mobile Disclaimer. BRIDG may use the services of SMS Gateway Providers or Cellular Phone Service Carriers (collectively, “Carriers”). BRIDG DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET OR CARRIERS. CLIENT HEREBY ACKNOWLEDGES THAT THE BRIDG PLATFORM MAY BE SUBJECT TO LIMITATIONS DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATION FACILITIES AND CARRIERS. BRIDG IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, THROUGHPUT, RESPONSE TIMES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE BRIDG PLATFORM SERVICE IS PROVIDED “AS IS”.
9. Promotions, Subscription Services and Marketing and campaign Services.
Bridg may provide (as indicated on the Billing Agreement) software, websites and other online services or Deliverables as part of the Bridg Platform or as a Service hereunder to Client. Such Services or Deliverables may be subject to additional terms and conditions.
9.1 Promotion services. In the event Client elects to operate sweepstakes, contests, promotions and other market data gathering activities (“collectively “Promotions”). Individuals to whom such Promotions are targeted are referred to as “Entrants”. Client shall have, or shall obtain, no later than legally required and shall maintain throughout the Term, all rights, licenses and consents required in connection with any Promotions. Any Promotions offered by Client using the Bridg Platform or a Service shall comply with all Applicable Laws, including but not limited to the provision of appropriate notice, rules, and terms and conditions related to such Promotions. Client is the sole sponsor of any such Promotions. Bridg shall have no liability associated with the Promotions including any failure by a consumer, Entrant or Client to comply with the terms of any Promotion or Applicable Law. Bridg shall not be deemed a third party administrator of the Promotions.
9.2 Campaign Services. In the event Client elects to obtain Campaign Services pursuant to an SOW, the additional terms and conditions set forth in the applicable SOW shall govern the provision of such Services.
10. Representations, Warranties & Disclaimers
Without limiting any of the foregoing, the respective parties also represent, warrant and disclaim as follows:
10.1 Mutual Representations and Warranties. Each Party represents and warrants that as of the Effective Date and at all times thereafter: (a) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (b) the execution and delivery of this Agreement by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; and (ii) will not conflict with or violate in any material manner, any Applicable Law having jurisdiction over such Party.
10.2 Warranties by Bridg. Bridg hereby represents, warrants and covenants to Client that at all times during the Term of this Agreement (a) any Service shall be performed in a competent, workman-like manner, in accordance with industry standards, and (b) all Deliverables furnished hereunder will substantially conform with any applicable specifications set forth in the applicable Agreement; and (c) Bridg will comply with all Applicable Laws for the United State in connection with its performance hereunder. Client’s sole remedy for Bridg’s breach of this Section 10.2(a) and (b) shall be, at Bridg’s option, either: (1) to conform the Deliverables with the applicable specifications, or (2) provide Client with a refund of the fees paid by Client for the non-conforming portion of the Deliverable.
10.4 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS ARTICLE 10, NEITHER PARTY MAKES ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CLIENT EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE USE OF THE BRIDGE MATERIALS, SERVICES AND/OR DELIVERABLES ARE AT CLENTS SOLE RISK AND LIABILITY AND THAT THE DELIVERABLES, BRIDG MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. BRIDG DOES NOT REPRESENT OR WARRANT THAT THE BRIDG MATERIALS, SERVICE, OR DELIVERABLES ARE COMPLETE, CURRENT OR ERROR-FREE, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO THE ACCURACY OF THE SAME OR ANY PORTION THEREOF. BRIDG MAKES NO WARRANTY THAT THE BRIDG PLATFORM, THE SERVICES OR THE DELIVERABLES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. USE OF ANY BRIDG MATERIALS DOWNLOADED OR OBTAINED THROUGH THE USE OF THE BRIDG PLATFORM, THE SERVICES AND/OR THE DELIVERABLES SHALL BE AT CLIENT’S OWN DISCRETION AND RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF THE BRIDG MATERIALS, SERVICES, OR DELIVERABLES. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY EITHER PARTY FROM THE OTHER PARTY HERETO, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT OTHERWISE EXPRESSLY STATED IN THESE TERMS. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
11.1 By Bridg. Bridg agrees to indemnify, defend, and hold Client, its respective officers, directors, employees and agents (each, an “Indemnitee” and collectively, the “Indemnitees”) harmless from and against any and all third party claim, suit, proceeding, liabilities, damages, losses, expenses (including reasonable attorney’s fees), (collectively “Losses”) to the extent arising out of or relating to (i) the Bridg Platform infringing a U.S. patent or copyright; and (ii) Bridg’s breach of any representation, warranty, or covenant hereunder; provided, however, that the foregoing indemnity in section 11.1 shall not apply, and Bridg shall have no liability under this Section 11.1 for any Losses based, in whole or in part, to the extent that the applicable Losses resulted from the (a) acts or omissions of Client, or Client’s Indemnitees or Personnel; (b) any materials or information that is not furnished by Bridg including but not limited to Client Data; (c) Client’s use of the Bridg Platform for a purpose or in a manner for which the Bridg Platform was not intended or designed; (d) any modification to the Bridg Materials by Client; (e) compliance with designs, plans or specifications of Client.
11.2 By Client. Client agrees to hold harmless Bridg and its respective Indemnitees from any and all Losses to the extent arising out of or relating to: (i) the Client Data or any materials or information furnished by or on behalf of Client, or its consumers or Entrants infringing any third party Intellectual Property Right; (ii) Client’s breach of any representation, warranty, or covenant hereunder; (iii) Client’s direct or indirect delivery of, or access to, any Client Data to Bridg hereunder; (iv) Client’s use of the Bridg Materials, the Deliverables, and/or the Services hereunder; (v) Client’s violation of any Applicable Laws.
11.3 Proprietary Rights Indemnification. In the event that Bridg is enjoined from delivering either preliminary or permanently, or continuing to license to Client, the Bridg Platform and such injunction is not dissolved within thirty (30) days, due to a claim of infringement of the Bridg Platform, then Bridg shall, at its expense: (a) obtain for Client the right to continue using such affected portion of the Bridg Platform; or, (b) replace or modify such Bridg Platform so that it does not infringe upon or misappropriate such proprietary right and is free to be delivered to and used by Client in the manner set forth in this Agreement; or, (c) in the event that Bridg is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, terminate the Agreement and reimburse Client for any unused portion of the amounts paid in advance for the remainder of the Term of the Agreement. THE FOREGOING CONSTITUTES BRIDG’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIM ARISING HEREUNDER.
11.4 Procedures. As an express condition to the indemnifying Party’s obligation under this Section 11, the Party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Losses for which indemnification is sought; provided, however, that any delay in notification shall not relieve the indemnifying Party of its obligations hereunder except to the extent that the delay materially impairs its ability to defend the applicable Losses or perform its indemnification obligations hereunder; and (b) provide the indemnifying party with all reasonable non-monetary assistance, information and authority reasonably required for the indemnifying party to defend and settle such Losses. The indemnifying party may select counsel of its choice to defend the Losses and direct the course of any litigation or other disputed proceedings concerning the Losses. The Indemnitee may select its own counsel and direct its own defense if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Losses, with the consent of the Indemnitee, such consent not to be unreasonably withheld, conditioned or delayed.
12. Limitation of liability.
EXCEPT FOR ANY OBLIGATIONS OF INDEMNIFICATION UNDER SECTION 11, NEITHER PARTY SHALL, IN ANY EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY THE SUBSCRIPTION SERVICES, CLIENT’S USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES OR PRODUCTS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (1) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, AND (2) CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY, WHETHER DIRECT OR INDIRECT, EXCEED THE PREVIOUS SIX (6) MONTHS OF FEES ACTUALLY PAID BY CLIENT TO BRIDG PURSUANT TO the Agreements (including any SOWs thereto) . CLIENT AGREES THAT THE FOREGOING IS AN AGREED ALLOCATION OF RISK AND IS A REFLECTION OF THE RIGHTS AND OBLIGATIONS AGREED UPON BY CLIENT AND BRIDG IN THESE TERMS. THE FOREGOING DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS.
13. Term & Termination
13.1 Term of Agreement. The Agreement shall continue for a twelve (12) month period following the Effective Date indicated on the Billing Agreement (“Initial Term”). Thereafter, the Agreement shall automatically renew for an additional twelve (12) month period unless either party has given not less than ninety (90) days prior written notice of its intent not to renew the Agreement (“Renewal Term”). In the event that the duration of any SOW is longer than the then current term, such then current term shall automatically be extended to be co-terminous with the termination of the SOW. The Initial Term and the Renewal Term are collectively referred to herein as the “Term”.
13.2 Termination for Cause. With the exception of any SLA which shall be subject to the terms of Section 7.4 above, if either Party breaches any material term of this Agreement and such breach remains uncured for a period of thirty (30) days following notification of such breach to the breaching Party, then the non-breaching Party may provide written notice of termination.
13.3 Termination for Insolvency. Bridg may immediately terminate this Agreement by written notice to Client if (i) Client shall become insolvent or make a general assignment for the benefit of creditors; (ii) Client files a petition for bankruptcy or has filed against it a petition for bankruptcy which is not dismissed within 90 days; or (iii) Client proposes any dissolution or becomes involved in legal, financial or reorganization proceedings that, in the opinion of Bridg, interferes with the diligent performance and satisfactory completion of Client’s obligations hereunder.
13.4 Payments Upon Termination. Upon the expiration or termination of this Agreement for any reason, Client shall, within fifteen (15) calendar days, pay to Bridg all undisputed amounts due and payable hereunder.
13.5 Survival. The following Sections shall survive any expiration or termination of this Agreement: “Definitions” (Section 1), “Fees & Payment” (Section 4), “Proprietary Rights” (Section 5), “Confidentiality” (Section 6), “Representations and Warranties” (Section 10), “Indemnification” (Section 11), “Limitation of Liability” (Section 12), “Payments Upon Termination” (Section 13.4), “General Provisions” (Section 14).
14. General Provisions
14.1 Relationship of the Parties; No Third Party Beneficiaries. The relationship of the Parties is one of independent contractors. This Agreement shall not be deemed to confer any rights or remedies upon any person or entity not a Party hereto.
14.2 Assignment. Neither Party may assign this Agreement without the other Party’s written consent; provided however, that either Party may assign this Agreement (a) to an Affiliate; (b) to an acquirer in connection with any merger, consolidation, or sale of all or substantially all of such Party’s assets; (c) in connection with any transaction or series of transactions resulting in a change of control or (d) in the event of any internal restructuring not constituting a change in control, to an Affiliate or successor-of-interest. Any attempted assignment in violation of the foregoing shall be void and of no effect.
14.3 Choice of Law and Venue. This Agreement will be governed and construed in accordance with the laws of California and any applicable federal laws, without regard to principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of federal and state courts in Los Angeles, California, for purposes of any dispute or legal action arising out of or related to this Agreement. The Parties further irrevocably waive any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court. Both Parties agree to waive any trial by jury for all claims hereunder.
14.4 Notices. All notices, demands and other communications shall be in writing and shall be deemed to have been given if delivered personally, or three days after mailing by certified mail (return receipt requested) or overnight carrier to the respective addresses listed on the Billing Agreement or to such other address as either Party may designate by providing notice in accordance with this Section
14.5 Cumulative Remedies. All rights and remedies of Client herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Bridg for the enforcement of this Agreement, and temporary and permanent injunctive relief.
14.6 Convention on Sale of Goods. The Parties acknowledge and agree that the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods do not and will not apply to this Agreement or the transactions contemplated herein.
14.7 Nonexclusivity. Client agrees and acknowledges that this Agreement does not grant any exclusive rights to Client, and Client agrees and acknowledges that Bridg may provide similar services to third parties.
14.8 Interpretation. This Agreement has been negotiated by the Parties and their respective counsel, and shall be interpreted in accordance with its terms and without any strict construction in favor of or against either Party. The section headings in this Agreement are included for convenience only and shall not limit or otherwise affect the interpretation of any of the terms or provisions herein.
14.9 Entire Agreement; Amendment; Cumulative Remedies; Severability. This Agreement, including any SOW, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior verbal or written agreements. No waiver or modification of this Agreement will be binding upon either Party unless made in writing and signed by duly authorized representatives such Party, and no failure or delay in enforcing any right will be deemed a waiver of such right. All remedies set forth in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise, and may be enforced concurrently or from time to time. If any term or provision of this Agreement shall be found to be illegal or unenforceable, such illegal or unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the Parties expressed herein.
14.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one instrument. This Agreement may be executed by digital signatures or facsimile.