1. SCOPE OF WORK: Data: Custom Social possesses a data and information processing. and analysis platform for performance marketing, marketing analytics, data aggregation, audience discovery, social media audience targeting and related functionality (collectively, together with any associated technology andservices of Custom Social as well as any modifications, updates, upgrades or successors to any of the foregoing, the “Custom Social Platform”). Advertising: Company hereby appoints Custom Social as company’s social media manager agent for the purposes of managing and placing advertisements on websites, social media platforms and other digital properties, “Sites” or“Platforms”. Company here
2. SERVICES; FURTHER ASSURANCES, CREATIVE: Custom Social shall represent the Company in the placement of the Company’s advertising creative at Custom Social sole discretion. CustomSocial will assist in the identification, selection and management hereunder ofSites and Platforms on behalf of the Company. Company hereby designates and appoints Custom Social as its representative to take such action on Company’s behalf and to exercise such powers and perform such duties as are delegated to CustomSocial by the terms of this Agreement, together with such powers as are reasonably incidental thereto. CustomSocial shall not have any duties or responsibilities to the Company except those expressly set forth herein, nor shall Custom Social deemed to have any fiduciary relationship with the Company. Company will deliver to Custom Social “advertising creative”and such other content, information, and data (collectively, the “CompanyContent”) as necessary for Custom Social to render the services described in this Agreement, as determined in Custom Social reasonable discretion. Each party agrees to perform acts and to execute and deliver any further document sas may be reasonably necessary to carry out the intent and provisions of this agreement. Custom Social takes no responsibility for the origin of the content and will make commercially reasonable attempts to insure the Company Content is appropriate and within acceptable moral, legal and other guidelines for online publishing. Furthermore, Custom Social makes no guarantees that Company Content will appear in a brand safe environment but will take all reasonable and commercially available steps to insure the CompanyContent does not appear next to or associated with political, hate speech, pornography or other online content that is unacceptable. The Company takes responsibility that Company owns all Company Content, both digital and content rights, and is legally allowed to use the Company Content to advertise on Sites and Platforms.
4. DATA SECURITY AND CONFIDENTIALITY Disclosure, Confidential Information: Each party understands that the other party may need to disclose certain non-public or proprietary information relating to the disclosing party’s business or technology that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as confidential, or that a reasonable person would infer from its nature, content, or manner of disclosure is confidential or proprietary (“Confidential Information”). The Company’s Confidential Information includes all The Company Data and Custom Social’s Confidential Information includes any non-public aspects of the Custom Social Platform as well as any outputs or results (including without limitation any audience segments)discovered, generated or created with or through the use of the Custom SocialPlatform hereunder. The receiving party agrees to take reasonable precautions to protect and maintain the confidentiality of the Confidential Information of disclosing party obtained or received in connection with this Agreement. The receiving party agrees not to use suchConfidential Information of the disclosing party for any purpose except to perform its obligations or exercise its rights under this Agreement or as otherwise expressly authorized in this Agreement or by the disclosing party in writing. The receiving party also agrees not disclose (without the disclosing party’s prior written authorization) to any third person any such ConfidentialInformation of disclosing party, other than on a need to know basis to the receiving party’s employees, consultants and service the Company’s who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as the confidentiality provisions of this Agreement). Notwithstanding any of the foregoing to the contrary,Confidential Information does not include any information that the receiving party can show: (1) through no fault or breach of the receiving party, is or becomes generally available to the public, or (2) was in its possession or was known to it prior to receipt from the disclosing party, or (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed by such receiving party without use of or reference to anyConfidential Information of the disclosing party. The receiving party may disclose ConfidentialInformation if the disclosure is necessary to comply with a valid court order or subpoena or other legal requirement, in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. Custom Social will maintain (and will require its third party service the Company’s to maintain) reasonable administrative, physical, and technical safeguards for the protection of the security and confidentiality of the Company Data, in accordance with applicable industry standards. In the event Custom Social becomes aware of any unauthorized use or disclosure of TheCompany Data in its possession or control, Custom Social shall promptly notify TheCompany thereof. Custom Social shall comply with all applicable laws and regulations in connection with its performance under this Agreement, provided that Custom Social shall not be in breach of the foregoing to the extent its failure to comply is due to a breach by The Company of this Agreement.
6. PAYMENT TERMS: The Company paying on time is an important part of thisAgreement. CUSTOM SOCIAL INC requires payment prior to service and on-going payment to continue servic, and may in its’ sole discretion restrict or end this agreement if payment is late. Company will pay CUSTOM SOCIAL INC’s costs and expenses, including any and all attorneys’ fees, that CUSTOM SOCIAL INC incurs trying to collect payment from Company.
7. TERM AND TERMINATION: This Agreement shall commence on the date of the Agreement and continue until terminated by the parties as provided herein (the “Term”).This Agreement may be terminated by either party upon two (2) days’ prior written (including email) notice to the other party. Termination of thisAgreement shall not relieve either party from payment obligations arising prior to such termination.
8. OWNERSHIP RIGHTS Custom Social Owns it’s technology; Company owns it’s data: Custom Social shall own (and shall have unfettered rights to use and retain) all worldwide right, title and interest in and to the Custom SocialPlatform, together with any modifications, improvements, developments, updates or enhancements to the Custom Social Platform, as well as Custom Social’s other technology and intellectual property, including without limitation any insights, analytics, trends, marketing targets, audience segments, performance metrics and similar results and out put discovered, created, developed, authored or generated by Custom Social or the CustomSocial Platform in connection with this Agreement or otherwise (collectively, all of the foregoing being the “Custom Social IP”). The Company shall own (and shall haveunfettered rights to use and retain) all worldwide right, title and interest inand to the Company Data. This Agreementdoes not convey any proprietary interest in or to any Custom Social IP or any CompanyData or rights of entitlement to the use thereof except as expressly set forthherein. Neither Party grants any rights or licenseshereunder in or to any of its intellectual property or technology, byimplication, estoppel or otherwise, except as expressly provided for in thisAgreement.
9. Licenses: a) Trademarks. Subject to the terms of this Agreement,Company hereby grants to Custom Social a non-exclusive, non-transferrable, non-sublicense able, worldwide, royalty-free license to use Company’s trademarks, trade names and logos (the “Company Marks”) and the Company Content for rendering the services described hereunder. Company agrees to the use of the Company Marks in Custom Social presentations, marketing materials, Customer lists and web listings of Customers.Company grants no other rights than are expressly granted hereunder, and CustomSocial acknowledges Company’s exclusive ownership of the Company Marks andCompany Content. Custom Social agrees not to take any action inconsistent with such ownership. Company may terminate, in whole or in part, the Custom Social license granted under this Section 9(a) if, in Company’s sole discretion, such use does not meet such party’s then-current trademark usage policy or similar policies.
10. Warranty Disclaimer:Custom Social shall have no liability for any claims, losses, or damage caused by errors or omissions in any data or information provided to CustomSocial by Company or any actions taken by Custom Social specifically at Company’s direction. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKESA NY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE CUSTOM SOCIAL PLATFORM OR ANY COMPANY DATA.EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIOR COURSE OF DEALING. OR USAGE OF TRADE.
11. Indemnification:Company shall indemnify, defend and hold harmless Custom Social and its directors, officers, employees, consultants, agents or assigns(collectively “Custom Social Indemnities”) from and against any and all claims, actions, suits or proceedings (“Claims”) brought by a third party against any Custom Social Indemnities and any directly resulting losses, liabilities, damages, expenses and costs, including, without limitation, reasonable fees for attorneys, which Claims arise out of a breach by Company of this Agreement. If Custom Social seeks indemnification under the Agreement, CustomSocial shall give Company: (i) reasonably prompt written notice of the relevantClaim; provided, however, that failure to provide such notice shall not relieveCompany from its liability or obligation under the Agreement except to the extent Company is prejudiced as a result of such failure, and (ii) reasonable cooperation and assistance in connection with the defense of such Claim, at Company’s expense. Company shall have the right to control the defense and settlement of any such Claim; provided, however, that Custom Social shall have the right to participate in the defense at its own expense and to approve any settlement of any Claim in advance, such approval not to be unreasonably withheld.
12. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (BUT WITHOUT LIMITING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. EXCEPT FOR THE OBLIGATION TOPAY FOR ANY AMOUNTS THAT ARE PROPERLY DUE AND PAYABLE HEREUNDER AND EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL EXCEED THE GREATER OF (A) $50,000 OR (B) THE TOTAL AMOUNTS PAID BY CUSTOM SOCIAL TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE LIABILITY FIRST AROSE.
13. General 13.1. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. 13.2. This Agreement is governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Except as expressly provided below, any action, dispute, claim or controversy arising under or in connection with this Agreement will be resolved exclusively by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”)then in effect. The arbitration will take place in San Francisco, California, and will be decided by a single arbitrator chosen by mutual agreement of the parties (or otherwise pursuant to the Rules). The decision of the arbitrator will be final and binding on the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to reasonable attorneys’ fees and costs. However, if the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and legal fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitration will be kept confidential except as required by law. Notwithstanding the foregoing, nothing herein shall preclude parties from seeking provisional remedies (such as temporary or preliminary injunctive relief) in aid of arbitration from a court of appropriate jurisdiction. The parties hereby consent to personal jurisdiction and venue in the federal or state courts located in San Francisco,California. 13.3. Neither party may assign thisAgreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement to a successor without consent in connection with the merger, acquisition, reorganization or sale of such party or all or substantially all of the assets of such party to which this Agreement relates. Any attempt to assign this Agreement other than as permitted above will be null and void. 13.4. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by theForce Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance. 13.5. All notices required or permitted under this Agreement will be in writing and delivered by confirmed mail transmission, by courier or express delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Order Form or to such other address as may be specified by either party to the other in accordance with this Section. 13.6. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, written or oral, with respect to this subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. No failure or delay in enforcing or exercising any right, remedy or provision of this Agreement shall constitute a waiver thereof. If any portion of this Agreement is found to be void, invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The Order Form and/or this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.