TERMS & CONDITIONS; GRANT OF LIMITED LICENSE
By consenting and agreeing to the Subscription Confirmation (as defined below), the customer of Creative Marketing Resources, Inc., a Wisconsin corporation (“CMR,” and CMR’s customer as stated in the SUBSCRIPTION CONFIRMATION (“Customer”) agrees to be bound by the terms of both the Subscription Confirmation and the following terms and conditions (collectively, the “Agreement”).
Unless otherwise defined, capitalized terms have the meaning set forth below.
- “Affiliate” means any corporation, partnership or other entity that is owned or controlled, directly or indirectly, more than fifty percent (50%) by a party.
- “Background Technology” means programming conventions, layouts, methods, designs, techniques, know-how, show-how or other tools of the trade in CMR’s possession or available for use by CMR in performing its duties hereunder or otherwise available in the public domain, and that have general utility in the industry in which CMR engages in business.
- “Chosen Subscription Level” means the subscription level (initially, “Silver,” “Gold” or “Platinum” or such other levels or types of subscription(s) as be made available by CMR), as such level has been selected and chosen by customer pursuant to an applicable Subscription Confirmation.
- “Confidential Information” means any and all information provided to either party or to which either party otherwise gains access during the course of its performance under this Agreement, regardless of whether such information is labeled or otherwise identified as being confidential. Without limiting the generality of the foregoing, Confidential Information shall include the disclosing party’s product plans, designs, schematics, development know-how, trade secrets, techniques, processes, procedures, algorithms, formulae, costs, prices, finances, marketing plans, business opportunities, research, contracts and customer information. Confidential Information shall not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the receiving party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality; (iii) was disclosed after written approval of the disclosing party; (iv) becomes known to the receiving party from a source other than the disclosing party without an obligation of confidentiality, or (iv) otherwise constitutes Background Technology of the receiving party.
- “Deliverables” means the activities, design, development, testing, integration, implementation, including, but not limited to, providing any services, related results or product of the work, as agreed upon by the parties and set forth in the SUBSCRIPTION CONFIRMATION and/or pursuant to the applicable Chosen Subscription Level.
- “Intellectual Property Rights” means any and all Patents, trademarks, copyrights, trade secrets, Know-How, moral rights and any other intellectual property rights arising by operation of law, contract, license or otherwise.
- “Know-How” means any proprietary technology, information, methods of use, processes, techniques, ideas or innovations other than patents.
- “Patents” means issued patents, patent applications, continuations, continuation-in-parts, divisions, reexaminations, reissues, and any foreign counterparts thereof.
- “Specifications” means the functional and technical requirements of the Deliverables mutually agreed upon by the parties and set forth in the SUBSCRIPTION CONFIRMATION.
- “Subscription Confirmation” means the acknowledgement and/or agreement between CMR and customer whereby customer has selected its Chosen Subscription Level, and also setting for the basic terms of CMR’s provision of the Deliverables to and for the benefit of customer.
- “Term” means the term of the Chosen Subscription Level, as provided in the Subscription Confirmation, but if no term is so provided therein, then such term shall mean the period following the date upon which the Subscription Confirmation is accepted by CMR to March 8, 2021. The Term shall immediately terminate upon Customer failure to pay any amounts due CMR.
Specific Work to be Performed and Services to be Provided.
CMR’s performance hereunder shall include its provision of services required or necessary for its production and delivery to Customer of the Deliverables, as set forth in the SUBSCRIPTION CONFIRMATION executed by the parties. The SUBSCRIPTION CONFIRMATION is, and shall remain subject to, the terms and conditions set forth in this Agreement.
- In consideration for CMR’s Deliverables, Customer shall pay CMR in accordance with the payment terms and /or fee schedule set forth in the applicable SUBSCRIPTION CONFIRMATION.
- If CMR purchases equipment or third-party software on Customer’s behalf, Customer shall reimburse CMR for the actual costs (plus a ten percent (10%) service fee). CMR shall charge Customer, at CMR’s hourly rate, for time spent by CMR ordering any third-party goods or services. CMR makes no representations or warranties as to third party goods or services.
- CMR represents and warrants to Customer that it shall perform all Deliverables in a workmanlike manner using reasonable skill and care, and that the Deliverables shall be delivered free from any security interest or other financial lien or encumbrance.
- CMR represents and warrants to Customer that, to its knowledge, the Deliverables provided hereunder will not infringe upon any patent, copyright, trademark, trade secret, or other intellectual property right of any third party, provided, however, that the foregoing representation and warranty shall not apply to any infringement, misappropriation or other claim resulting from or related to (i) use of any Deliverable in combination with any equipment, software or other product or asset that is not or was not approved for use by CMR; (ii) any claim arising from any instruction, information, design or other materials (including, but not limited to, any of the foregoing included among the Customer’s Confidential Information) furnished by Customer to CMR hereunder; or (iii) Customer’s continuing the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, INTELLECTUAL PROPERTY, AND DELIVERABLES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CUSTOM OR USAGE IN TRADE).
- The party disclosing any Confidential Information (the “Disclosing Party”) shall own and retain all right, title and interest in and to all such Confidential Information, and the party receiving such Confidential Information (the “Receiving Party”) shall have not ownership or interest therein. During the term of this Agreement and for a period of five (5) years thereafter, the Receiving Party shall not disclose to any third party any of the Disclosing Party’s Confidential Information or (ii) use the Disclosing Party’s Confidential Information for any purpose not specified in this Agreement. The Receiving Party agrees to notify the disclosing party promptly of any unauthorized disclosure of the Confidential Information and to assist the Disclosing Party in remedying any such unauthorized disclosure; provided, however, that such no duration limitation shall apply with respect to any Confidential Information that constitutes and remains a “trade secret” under applicable federal and/or state law (including, but not limited to, Section 134.90 Wis. Stat., as amended). Nothing in this Agreement shall be construed to restrict either party from disclosing Confidential Information as required by law or court order or other governmental order or request, provided in each case the receiving party requested to make such disclosure shall timely inform the disclosing party and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Confidential Information to the extent possible. In addition, the Receiving Party shall permit the Disclosing Party to attempt to limit such disclosure by appropriate legal means.
- The Receiving Party shall not use Confidential Information for any purpose other than that indicated in this Agreement without the Disclosing Party’s prior written approval.
- Upon termination of this Agreement, or upon request of the Disclosing Party, the Receiving Party shall deliver promptly to the Disclosing Party, or certify to the Disclosing Party destruction of, any documents reflecting Confidential Information and any copies thereof and any electronic or other record of such Confidential Information, provided, however, that the Recipient may retain one archival copy to be used for legal purposes only.
2. Grant of License to Deliverable; CMR’s Ownership.
- 2.1. License Grant. Throughout the Term, CMR hereby grants to Customer a non-exclusive, limited, license (without any right to sublicense), to use and Deliverable, in its own name, including any improvement, innovation, invention, change or modification of the Deliverable by Customer. The foregoing License shall immediately and automatically terminate upon the expiration of the Term, and thereafter Customer shall have no rights whatsoever in the Deliverable or any part or portion thereof (all of such rights shall revert to CMR). At no time (either during or after the Term) may Customer share with any third-party, or allow any such third-party to make, use or sell any Deliverable (or any part or portion thereof) and/or any Intellectual Property Right incorporated therein or associated therewith.
- 2.2. Ownership of Deliverables. Title to and ownership of any and all Deliverables (whether copyrightable or not), inventions, discoveries and innovations, documents, materials, software (including source code), all other Intellectual Property Rights and information developed by CMR in connection with any Deliverable(s) hereunder and any improved, updated, upgraded, modified, customized or additional parts thereof, and all Intellectual Property Rights embodied therein, shall at all times remain the property of CMR (separately and collectively, "Work Product").
- 2.3. CMR. Title to and ownership of Background Technology and other materials previously developed or copyrighted by CMR, including, but not limited to, CMR’s Confidential Information ("Pre-Existing Materials") shall, at all times, remain the sole and exclusive property and assets of CMR and/or its licensors (as applicable). Nothing in this Agreement or the SUBSCRIPTION CONFIRMATION shall preclude CMR from providing similar services to other customers in connection with its business operations, provided CMR does not disclose or use any of Customer’s Confidential Information, except Pre-Existing Materials and/or Background Technology.
- 2.4. Exclusions. Notwithstanding the foregoing, CMR shall own and retain ownership of any and all native files, source files or the like, and none shall be included in the Deliverables or the license granted to Customer herein; Customer shall have no rights therein, and CMR has no obligation to provide any of such files or materials to Customer.
Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST OR DIMINISHED PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE OR DATA LOSS, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY AT LAW OR IN EQUITY.
- 2.5.Indemnity. Each party to this Agreement (each, a “Party”) agrees to indemnify, defend and hold the other Party and the other Party's Affiliates and their respective employees, directors, officers and agents harmless against any claim, liability, damages, losses, judgment, and other expense (including but not limited to reasonable attorney's fees and court costs) ("Liability") incurred in connection with any claim made by a third party against the indemnified Party, its Affiliates, or any of their officers, directors, employees, agents or representatives to the extent arising out of, or directly attributable to, the indemnifying Party's gross negligence or willful misconduct.
- 2.6.Requirements. To receive the indemnities set forth in this Agreement, the indemnified Party shall promptly notify the indemnifying Party in writing of a claim or suit and shall provide reasonable cooperation (at the indemnifying Party's expense). No settlement or compromise shall be binding on a party hereto without its prior written consent, which consent shall not be unreasonably withheld.
Intellectual Property Indemnification.
This Section 8 sets forth the exclusive remedy and entire liability and obligation of each party with respect to intellectual property infringement or misappropriation claims, including patent, copyright or trademark infringement claims and trade secret misappropriation.
- 2.7.Indemnity. Subject to Section 8.3 below, CMR agrees to indemnify, defend and hold Customer and its Affiliates and their respective employees, directors, officers and agents harmless against any claim, liability, damages, losses, judgment, and, other expense (including but not limited to reasonable attorney's fees and court costs) awarded against Customer by a court of competent jurisdiction pursuant to a final judgment in favor of the owner of any U.S. patent, copyright, trademark, or trade secret, as a direct result of any claim of infringement of any such patent, copyright, trademark or misappropriation of any trade secret by any Deliverable(s) provided by CMR under any SUBSCRIPTION CONFIRMATION.
- 2.8.Infringement Remedies. In the event an infringement or misappropriation claim as described in Section 8.1 above arises, or if CMR or Customer reasonably believes that a claim is likely to be made, CMR, at its option shall either: (i) modify the applicable Deliverables so that they become non-infringing but still comply with the applicable Specifications set forth in the SUBSCRIPTION CONFIRMATION; or (ii) replace the applicable Deliverables with non-infringing functional equivalents; or (iii) obtain for Customer the right to use such Deliverables upon commercially reasonable terms; or only if the three preceding remedies prove impractical or commercially impracticable, then (iv) remove the infringing or violative Deliverables and refund to Customer the fees paid for such Deliverables that are the subject of such a claim.
- 2.9.Intellectual Property Rights Exclusions. Notwithstanding the provisions of Sections 8.1 and 8.2 above, CMR shall have no obligation under this Section 8 or other liability for any infringement or misappropriation claim resulting or alleged to result from: (i) use of the Deliverables in combination with any equipment, materials or software not approved for use by CMR; (ii) any claim arising from any instruction, information, design or other materials furnished by Customer to CMR hereunder; or (iii) Customer's continuing the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement.
- 2.10. Modification; Waiver. Neither this Agreement nor any related SUBSCRIPTION CONFIRMATION(s) may be modified or amended, except by a written instrument signed by both parties. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited in this Agreement.
- 2.11. Notices. All notices required or permitted under this Agreement will be in writing and shall be considered as having been given if faxed with follow-up original mailed by U.S. first class mail, sent to the addresses set forth at the beginning of the Agreement or to such other addresses as may be designated in advance by a party giving written notice to the other party.
- 2.12.No Third-Party Beneficiaries. This Agreement has been entered into for the sole benefit of CMR and Customer and in no event will any third-party benefits or obligations be created thereby.
- 2.13.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin.
- 2.14.Independent Contractor; Consultant Relationship. CMR’s status under this Agreement is that of an independent contractor of Customer. All CMR personnel shall be employees of CMR and none shall be deemed an employee, agent, partner or joint venturer of Customer for any purpose whatsoever.
- 2.15.Injunctive Relief. The parties agree that injunctive relief is appropriate in enforcing the confidentiality provisions of this Agreement. In the event of any such action to construe this provision, the prevailing party will be entitled to recover, in addition to any charges fixed by the court, its costs and expenses of suit, including reasonable attorney's fees.
- 2.16.Force Majeure. Neither party shall be liable to the other for any delay or failure in performance hereunder due to causes which are beyond the reasonable control of the party unable to perform. If a force majeure event occurs, the party delayed or unable to perform shall give prompt notice to the other party, and the other party may terminate the affected SUBSCRIPTION CONFIRMATION if a force majeure event remains in effect more than forty-five (45) consecutive days.
- 2.17.Subcontracting. CMR may enter into subcontracts to provide a portion of the Deliverables under this Agreement.
- 2.18.Severability. If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.
- 2.19.Entire Agreement. This Agreement, the SUBSCRIPTION CONFIRMATION and the terms and conditions set forth herein and therein supersede any and all terms or conditions as may be provided by Customer to the contrary. In addition, this Agreement together with the SUBSCRIPTION CONFIRMATION constitute the entire agreement and contract between the parties, and no such other or additional terms or conditions shall have any force or effect whatsoever. This Agreement together with the SUBSCRIPTION CONFIRMATION expressly limits acceptance to the terms presented or offered by Customer and CMR hereby objects to any different or additional terms contained in any response to the SUBSCRIPTION CONFIRMATION and/or this Agreement. This Agreement (and the SUBSCRIPTION CONFIRMATION and other documents, forms, exhibits and schedules delivered in accordance herewith or therewith) contain the entire understanding of the parties with respect to the matters herein contained and supersedes all previous agreements and undertakings with respect thereto.