Client’s use of Active’s Services (as defined herein) is subject to the terms set forth below (this “Agreement”) and is between Client and Active. “Active” means Active Network, LLC with a principal place of business is at 717 N Harwood Street, Suite 2500, Dallas, TX 75201. “Client” means any party other than Active entering into this Agreement. Each of Client and Active shall hereinafter be a “Party” and collectively “Parties.” In order to use the Services, Client must first agree to this Agreement. Client represents and warrants that Client has the necessary and full right, power, authority, and capability to accept this Agreement, to bind Client’s organization, and to perform Client’s obligations hereunder. Client can accept this Agreement by: (a) clicking to accept or agree to this Agreement, where this option is made available to Client by Active in the user interface for any Service; (b) signing an order form where a link to this Agreement appears in an order form or other document provided to Client by Active; (c) by signing this Agreement if there is a designated area to sign; or (d) by actually using the Services. In the case of (d), Client understands and agrees that Active will treat Client’s use of the Services as acceptance of this Agreement from that point onwards. Client may not use the Services and may not accept this Agreement if (i) Client is not of legal age to form a binding contract with Active, or (ii) Client is barred from receiving the Services under the laws of the United States or other countries including the country in which Client resides or from which Client uses the Services. Client may not use the Services if Client does not accept this Agreement. “Effective Date” means the date that Client accepts this Agreement. By accepting this Agreement, Client agrees as follows:
1. Services. Active shall perform the services and obligations (the “Services”) and Client shall fulfill the obligations more specifically set forth in insertion orders, statements of work or schedules under this Agreement (each, a “Schedule”), the first of which is attached hereto. Additional Schedules may be added to this Agreement provided that each is mutually agreed upon and signed by both Parties and the terms of this Agreement shall apply to such future Schedules.
2. Compensation. Client agrees to pay Active the amounts for the Services as agreed upon by the Parties more specifically set forth in the applicable Schedule (“Compensation”). Active will invoice Client monthly in arrears for all such amounts unless otherwise expressly stated in the applicable Schedule. Payment shall be due thirty (30) days from receipt of an invoice, and each such amount will be overdue upon the day following such due date. To the extent any amount is not paid prior to becoming overdue, such amount will bear interest from the date of initially becoming due, at a rate equal to the lesser of 1.5% per month, compounded monthly, or the maximum rate permitted by law. Further, if any amount payable remains unpaid fifteen (15) days after becoming overdue, Active shall have the right upon three (3) days’ prior written notice to Client to (a) immediately terminate this Agreement and/or (b) accelerate any unpaid portion of the Compensation so that it will be due and payable to Active as of the termination date, and in any case upon receipt of an invoice in relation thereto. Client shall reimburse Active for any costs or expenses (including attorneys’ fees) associated with collecting payment from Client. Client is responsible for all taxes, duties, and other charges in the nature of taxes and duties (excluding taxes on the net income of Active) exigible in relation to the Services and the Compensation.
3. Press Release/Publicity. Upon written approval of the other Party, Active or Client may issue a formal press release relating to the entry and general terms of this Agreement.
4. Confidentiality. The Parties recognize that confidentiality is of the essence of this Agreement. Except as otherwise expressly permitted in this Agreement, neither Party shall disclose to any person or entity (except such recipient Party’s own employees, subcontractors, and agents with a need to know such information in order to permit execution and completion of this Agreement who are aware of and have agreed to maintain the confidentiality of the information, and such recipient Party’s legal counsel and/or accountants/auditors) any non-public information of the other Party obtained in connection herewith (the “Confidential Information”). The Confidential Information does not include information which:
Further, the Parties shall treat the terms (but not the existence) of this Agreement as Confidential information, provided that subsections b) and d) shall not apply to render such terms non-confidential.
5. Client’s Representations and Warranties. Client represents and warrants that (a) it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) this Agreement constitutes the valid and binding obligation of Client, enforceable in accordance with its terms; (c) none of the Client IP infringes upon the intellectual property rights of any third party; (d) all licenses, agreements, permits, waivers, releases, registrations, approvals, and/or authorizations required in connection with its performance under this Agreement have been or shall be timely obtained and will be valid and sufficient for its performance; and (e) it shall not direct Active to perform any services or engage in activities that would cause Active to violate any applicable laws, rules, or regulations in carrying out its obligations hereunder.
7. Indemnification Claims Procedure. Each Party’s obligations under Section 6 are conditioned upon (a) prompt written notice of the existence of a Claim, provided that a failure of prompt notification shall not relieve the Indemnifying Party of liability hereunder except to the extent that defenses to such Claim are materially impaired by such failure of prompt notification; (b) sole control over the defense or settlement of such Claim by the Indemnifying Party, provided, however, that the Indemnifying Party shall not, in the defense of any such action, consent to the entry of any judgment or enter into any settlement where such entry of judgment or settlement does not include a provision releasing the Indemnified Party from all liability with respect to such Claim, except with the written consent of the Indemnified Party, (which consent shall not be unreasonably withheld, conditioned or delayed); and (c) the provision of assistance by the Indemnified Party at the Indemnifying Party’s request to the extent reasonably necessary for the defense of such Claim.
8. Disclaimer of Warranties and Limitations of Liability. TO THE EXTENT PERMITTED BY LAW, ACTIVE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. ACTIVE’S SERVICES ARE PROVIDED TO CLIENT ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ACTIVE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. ACTIVE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT IN ANY CASE WHATSOEVER SHALL NOT EXCEED AN AMOUNT GREATER THAN THE AMOUNT ACTUALLY RECEIVED BY ACTIVE FROM CLIENT AS CONSIDERATION FOR THE SERVICES GIVING RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
9. Intellectual Property. Client hereby grants to Active a royalty-free, non-exclusive license to use to all intellectual property of Client (including without limitation any trademarks, trade names, trade dress and copyrights) (collectively, “Client IP”) provided by Client for the sole purpose of carrying out Active’s obligations under this Agreement. No right, property, license, permission or interest of any kind in or to the use of Client IP is or is intended to be given to, transferred to, or acquired by Active by the execution, performance or nonperformance of this Agreement or any part thereof other than the express non-exclusive licenses set forth in this Agreement. Any intellectual property developed by Active separate and apart from the Client IP pursuant to this Agreement shall be the sole property of Active.
10. Term and Termination. The term of this Agreement (the “Term”) shall commence upon the Effective Date and continue until terminated in accordance the remainder of this provision. This Agreement may be terminated as follows:
If this Agreement is terminated prior to its completion either (i) by Active under either of paragraphs a) or b) above, or (ii) by Client other than under paragraph a) above, Client will pay any non-cancelable commitments properly entered into by Active hereunder, shall reimburse Active for any unbilled incomplete work previously authorized by Client, and shall pay the Compensation.
11. Active Promotion. Upon written approval by Client, Active may use the existence of this Agreement, and descriptions of the Services Active provides hereunder, to promote Active’s services to other entities during and after the Term of this Agreement. In relation thereto, Client grants to Active a, non-exclusive, perpetual, royalty-free license to display and distribute in its marketing and case study materials and efforts samples of any promotional materials generated in the course of this Agreement, and any logo, trademark or service mark provided by Client in association with this Agreement (provided that Active may not modify any such marks in any way other than to resize them), for the limited purposes of demonstrating and promoting Active’s own services. Such license shall, without limitation, include the right to display and distribute such material and information on Active’s internet sites but will expressly exclude paid advertisements without further written approval from Client.