This Media Broker Agreement (“Agreement”) is entered into by and between iGo Marketing, LLC dba BoonYah (“Company”) and the party identified as agreeing electronically to all terms and provisions herein (“Media Broker”) who may be individually referred to as (“Party”) or collectively as (“Parties”).
WHEREAS, the Company is engaged in the business of delivering rich media content from advertisers to consumer’s mobile devices via hardware, software and applications.
WHEREAS, Media Broker has contacts in the industry by which he or she can introduce Company to business prospects which may be in need of its advertising services.
WHEREAS, Company will pay Media Broker a commission fee for referrals (“Advertisers”) that sign an Advertiser Terms and Conditions Agreement (“Advertiser Agreement”) and pay funds to the Company pursuant to a signed Advertiser Agreement ; and
WHEREAS, the Parties wish to set out the terms and conditions under which they will conduct their future business relationship.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound, the Parties agree to the following:
SCOPE OF RELATIONSHIP BETWEEN THE PARTIES
- Company and Media Broker will work with each other solely on an independent contractor basis. Nothing herein will be construed to create a relationship of employer and employee; principal and agent or otherwise. Media Broker shall control its own time, its manner and means of work and use its own equipment and vehicles. Accordingly, Media Broker is not entitled to any benefits accorded to Company employees, including, without limitation, health insurance, life insurance, disability insurance, workers’ compensation, vacation or sick leave.
- Media Broker understands and acknowledges that this Agreement gives no exclusive right to offer services of Company and that Company may offer services through other independent Media Brokers or any other means it deems appropriate.
- During the term of this Agreement and for 90 days thereafter, Media Broker will not work in or for, or have any interest as an owner, shareholder, employee or consultant in any business that competes with Company or engages in business similar to that of Company (i.e., engages in the business of proximity or mobile marketing). Media Broker acknowledges that any breach of this Section may cause irreparable harm to Company for which money damages could not adequately compensate Company. Accordingly, in addition to all other remedies, Media Broker agrees that Company will be entitled to obtain injunctive relief to enforce this section.
- Media Broker will comply with all sales, marketing policies and procedures that Company may establish from time to time for Media Broker to perform its services required hereunder and it will coordinate all of its activities under this Agreement with Company.
- Media Broker will have no authority to legally bind Company to any obligations and it will not hold itself out as having such authority.
OBLIGATIONS OF MEDIA BROKER
- Media Broker will provide Company with qualified Prospects. “Prospect(s)” means those entities submitted to Company for the purpose of advertising.
- For Media Broker to qualify for its commission, Media Broker must be the first entity to have submitted the prospect’s information and must have actively and materially participated in the acquisition of the Advertiser by Company. In its sole discretion, Company will decide any disputes regarding who first submitted the qualified Prospect or whether it was already a Company Prospect or Advertiser, in which case Company may deal directly with the Prospect or Advertiser without any obligation to pay any Media Broker fees. Company reserves the right to reject a Prospect for any or no reason and it will not be liable to Media Broker for any loss suffered by Media Broker for failure to execute an Advertiser Agreement with a Prospect.
- Media Broker will name the Company as an additional insured on any insurance policy applicable to any vehicle which Media Broker uses in connection with its duties hereunder and provide Company an insurance certificate confirming such designation.
COMPENSATION AND EXPENSES
- Media Broker Compensation shall be 34% of the total commission paid by Prospects who sign an Advertiser Agreement (“Advertiser”) and actually received by the Company for each Advertiser procured by Media Broker.
- Media Broker’s entitlement to such commissions shall continue throughout the term of this Agreement and as long thereafter (subject to Section 3.c. below) as Company continues to realize profits from any signed Advertiser Agreements procured by Media Broker. Renewals or extensions made more than 90 days after expiration of any Advertiser Agreement and not renewed by Media Broker shall not be deemed to be extensions or renewals for purposes of this Agreement.
- In the event of Termination of this Agreement by either party for any reason, future commissions due under this Agreement will remain payable at a rate shown in Section 3.a.. hereinabove for each account secured by Media Broker for three (3) months, at which time such commissions will cease to be due Media Broker.
- Payment of commissions will be made by the 15th of the month following receipt of payment from each Advertiser procured and/or managed by Media Broker. If an Advertiser fails to pay as obligated, Company will not be obligated to pay Media Broker. If Company determines that it paid a past commission payment in error (or the payment was based on information that is subsequently determined invalid), it may deduct from or add to future payments due Media Broker under this Agreement as necessary. If the discrepancy is found after an Advertiser’s Agreement has expired and all commission payments have been made, Company will send an invoice (or credit) to Media Broker to bring the account current. If money is owed to Company, Media Broker agrees Company may deduct such amount from any monies or commissions owed to Media Broker or if nothing is owed, Media Broker agrees to pay such amounts within ten (10) days of the invoice date.
- Company may, if required by law, disclose to any Advertiser (or any governmental entity) the fees it is paying to the Media Broker for the services it provides hereunder.
- Media Broker shall be solely responsible for any and all of its business expenses, including but not limited to: its employee salaries and expenses; its taxes; etc. in performance of its services hereunder.
TERMS AND TERMINATION
- The term of this Agreement will commence on the effective date of this Agreement and will remain in effect until terminated by either Party for any reason (with or without cause) upon thirty (30) days prior written notice. Termination may be immediate if: i) Media Broker breaches this Agreement; ii) Media Broker violates any Company policies or procedures; iii) Media Broker is negligent or engages in wrongful or illegal conduct; or iv) imminent, irreparable harm is possible.
- Because of the dynamics of the business, failure to bring in any new Advertisers during any three (3) successive months may result in the termination of this Media Broker Agreement with no further commissions to be paid in accordance with the Agreement terms.
- If at any time following the execution of an Advertiser Agreement, there exists an event of force majeure, default, or change in law, regulatory action, judicial action or any other reason that would give rise to, or require termination, suspension or modification of an Advertiser Agreement, then Company may terminate or reasonably amend the Advertiser Agreement without liability, penalty or damage to Media Broker and without Media Broker’s consent.
- Upon termination of this Agreement, Media Broker shall immediately deliver to the Company all property in its possession, or under its care and control, belonging to the Company, including but not limited to, proprietary information, customer lists, lists of prospects which have been contacted by Media Broker, trade secrets, intellectual property, and any other information that Company deems confidential.
- Media Broker shall not, during the Agreement and for a period of one year immediately following termination of this Agreement, either directly or indirectly, call on, solicit, or take away, or attempt to call on, solicit, or take away, any current Advertisers or pending Prospects of the Company.
- Each Party will keep in confidence (and not disclose) the terms of this Agreement to any third party (other than the Parties’ and their affiliates’ employees, lenders, counsel, consultants, or accountants who have agreed to keep such terms confidential), except in order to comply with and applicable law, order, regulation or exchange rule. In the event such disclosure is ordered or required, the disclosing Party will notify the other Party in writing 30 days before disclosure is ordered or required. The Parties will be entitled to all remedies at law or equity to enforce this confidentiality obligation.
- Confidential Information means all information or material which: (i) gives Company some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Company; (ii) is owned by Company or in which Company has an interest; and (iii) is either (A) marked “Confidential Information,” “Proprietary Information” or other similar marking, (B) known by Media Broker to be considered confidential and proprietary by Company or (C) from all the relevant circumstances should reasonably be assumed by Media Broker to be confidential and proprietary to Company. Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): trade secrets, inventions, drawings, file data, documentation, diagrams, specifications, know-how, processes, formulas, models, flow charts, software in any stage of development, source codes, object codes, research and development procedures, research or development and test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, pricing models, business plans, information relating to customers, prospects and/or suppliers’ identities, characteristics and agreements, financial information and projections, and employee files. Confidential Information also includes any information described above which Company obtains from another party and which Company treats as proprietary or designates as Confidential Information, whether or not owned or developed by Company
TAXES, INSURANCE AND COMMISSIONS
- Media Broker represents and warrants that Media Broker and Company are separate and distinct entities, unrelated to each other and that they operate independently of each other.
- Media Broker represents and warrants that it will pay, when and as due, any and all taxes due as a result of Media Broker collecting commission under this Agreement, and if required by law or Company policy, that it will acquire and maintain general liability, workers compensation, or other insurance.
- Media Broker will provide Company with proof of said tax payments or insurance coverage upon demand if such is required by law or Company policy.
- Upon electronically signing of this Agreement, Media Broker will submit a completed W9 along with this Agreement.
Each Party will defend, indemnify, and hold harmless the other Party and its owners, officers, directors, employees, parent company(s), members and agents, from and against any and all damage, liabilities, claims, charges, fees or taxes, penalties, or fines incurred or claimed and resulting from or related to: (i) any breach or default of its respective obligations hereunder; (ii) any of its negligent acts or omissions or willful misconduct or any such act, omission or conduct on the part of its employees or agents; or (iii) claims from third parties used or employed by the Parties in furtherance of this Agreement. These indemnification obligations will survive termination or expiration of this Agreement.
- Any controversy arising out of this Agreement will be settled by applying the law of the State of Texas without regard to conflict of laws. Venue for any such controversy will be in the state district court in Rockwall County, Texas.
- The services provided by Media Broker pursuant to this Agreement are for the exclusive benefit of Company. If Media Broker is represented by a third party in connection with the procurement of this Agreement or if Media Broker employs any third party in connection with its performance hereunder, Media Broker will (i) obtain prior written consent from Company for such engagement(s) or representation(s), (ii) be fully responsible for any fee, commission or other compensation owing any such third party, and (iii) arrange for payment of such third party without involving Company. As of the effective date of this Agreement, there are no third party beneficiaries under this Agreement.
- Media Broker will not assign this Agreement without the prior written consent of Company.
- This Agreement may be modified or amended but only in writing, signed by each Party.
- This Agreement is intended to embody the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof; supersedes all prior agreements, understandings and representations written or oral, between Company and Media Broker; and may not be contradicted by evidence of any prior or contemporaneous agreement, understanding or representation, whether written or oral.
IN WITNESS WHEREOF, the Parties hereto have duly entered and executed this Agreement and represent and warrant that the party executing this Agreement on their behalf is duly authorized.
iGo Marketing, LLC
Attention: Legal Department
2703 Market Center Drive
WHEREAS, Company is in the business of establishing a wireless mobile advertising network (the “Network”) wherein advertisers can purchase certain advertising inventory (the “Inventory”) for delivery of Advertiser’s advertising materials to consumer mobile phones and email.
WHEREAS, Company has developed an app, software platform and hardware platform to be used by Advertiser (“Company System”).
WHEREAS, Advertiser desires to create and publish its own advertisements on the Network and in exchange for access to the Inventory and Network, Advertiser agrees to pay certain rates and fees set forth herein.
WHEREAS, Advertiser may receive certain marketing devices (the “Equipment”) and installing same in or about Advertiser’s premises.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged and expressed, the parties hereto agree as follows:
1.1 “Ad” or “Advertisement” means an advertisement or marketing or promotional material provided by, or on behalf of, Advertiser to Company which Advertiser has created for publication within the Company System or any device operated by Company or any device owned and operated by a Publisher associated with Company.
1.2 “Publisher” means any marketing device (“Equipment”) owner.
1.3. “Network” means the marketing advertising network operated and/or managed by Company, which includes Publisher(s).
1.4. Confidential Information” means any and all information that is disclosed by Company to Advertiser that relates to Company’s trade secrets, proprietary information, products, software, networks, operations, promotional material, developments, creations, proprietary rights or business affairs, including without limitation, all intellectual property, codes (source or otherwise) and all other information collected, prepared, created, developed, generated or acquired by or on behalf of Company or any of its advertisers (including Advertiser), officers, employees, representatives or agents as a result of or in connection with the Services, excluding only information that: (a) is or becomes publicly known, through no fault or action of Advertiser; (b) the Advertiser can clearly demonstrate was known by the Advertiser prior to disclosure hereunder; (c) the Advertiser can demonstrate was disclosed to the Advertiser by a third party with no violation of confidentiality to Company ; or (d) the Advertiser can demonstrate was developed by the Advertiser prior to and independent of any use of information disclosed by Company. Company’s Confidential Information includes, but is not limited to:
(iii) Company’s app, software, technology, source code, passwords, applications; and
(iv) Company’s media planning and buying methodologies.
(v) Advertiser and customer/User information
(vi) Network device locations
1.5. “User” means a person using a mobile phone or any other mobile or portable wireless device, or website visitor.
- COMPANY SERVICES AND FEES
2.1. Description. The Company System is an app, software and hardware platform that facilitates an advertiser to display promotional media on to a User’s wireless and other devices (the “Service”). The Company System provides a self-managed portal for advertisers to create and/or upload their own Ad or advertising media and activate the Ad for publication.
The Network is comprised of Equipment and Publishers who have placed Equipment in areas where consumers frequent. Ads are published to a consumer mobile and/or wireless device through a transmission between the Equipment and the User’s mobile or wireless device. In order for a consumer to receive the Ad they must download the Company app.
The Service will include the following:
- Listing(s): One
- Category(s): One
- Offers(s): Unlimited
- Featured Ad(s): One
- Geofence(s): One
- Beacon(s): One
2.2. Fees. Advertiser will pay Company an advertising fee in the amount shown on the website to be paid monthly.
Advertising fees are due in advance, prior to publication of the Ad onto the Network. Company makes no guarantees or warranties with respect to the reach, publication, circulation, market, effectiveness, broadcast, performance or success of Advertiser’s Ad. Advertiser agrees that all advertising fees will be paid timely and are due to Company irrespective of the performance or success of Advertiser’s Ad. No refunds shall be due Advertiser for any delay or interruption of the Service or Network.
- EQUIPMENT AND EQUIPMENT FEES
3.1. Placement of Equipment. Company agrees to place the Equipment on temporary loan to the Advertiser for limited use by the Advertiser. The Equipment shall be maintained only at the Advertiser’s place of business and shall not be moved from this location without the written consent of Company. The Equipment shall be delivered back to Company without delay following such demand and without delay following such demand at the expense of the Advertiser. If at any time Company delivers additional property to the Advertiser, such additional property shall be subject to the terms and conditions of this Agreement unless specifically agreed by the parties in writing.
3.2. Equipment Deposit. Advertiser will not have to pay Company a one-time Equipment Deposit.
3.3. No Liens or Encumbrances. Advertiser shall not create nor permit any lien, security interest, or other encumbrance of any nature or kind, whether voluntary or involuntary, to attach to the Equipment. In the event that any such encumbrance attaches to the Equipment, Advertiser shall immediately and without delay cause such encumbrance to be discharged.
3.4. Access to Equipment. Advertiser shall provide Company or its agents with access to its premises at any time during normal business hours or after normal business hours in the event of a bona fide emergency for the purpose of inspecting, maintaining or otherwise accessing the Equipment.
3.5. Care and Maintenance. Advertiser shall be responsible for the care and maintenance of the Equipment during the term hereof and shall take all steps necessary to assure that the Equipment remains in good working order, in the same condition as when delivered. Advertiser shall be responsible for the safe working of the Equipment, the proper operation of the Equipment, and the safe installation of the Equipment in accordance with all specifications and safety requirements. Advertiser shall take all necessary actions to assure that the Equipment is not misused, damages, or subject to risk of harm.
Upon delivery, Advertiser shall be responsible for any and all risk of loss, damage, destruction, theft or any other diminution in value or any damage or injury caused directly or indirectly by or as a result of the Equipment or the operation thereof and shall hold Company harmless from and against the same. Advertiser shall pay Company for any damage, loss or destruction, regardless of the cause therefore. In the event of the destruction of the Equipment, Advertiser shall lose the entire Equipment Deposit.
3.6. Equipment Warranty Disclaimer. The Equipment is being provided for the use of Advertiser as an accommodation to the Advertiser. Company makes to representations or warranties as to the condition or operation of the Equipment.
Advertiser agrees that it shall indemnify and hold Company harmless from and against all damages, claims, liabilities, actions, suits, threats, demands and settlements arising directly or indirectly from the use and operation of the Equipment, made by Advertiser or any other party, including but not limited to incidental and consequential damages, lost profits, business interruptions damages, injury related damages, special and punitive damages, even if Company is advised that such damages are possible or reasonably anticipated.
- RESPONSIBILITIES OF ADVERTISER
4.1. Content Responsibility. Advertiser accepts complete responsibility and all liability for all Advertisement content and acknowledges that because the Company System is self-managed, Company may have no knowledge of the Advertisement, its content, or compliance with any law or ordinances particular to any location in which it is published. The Advertiser indemnifies Company, the Publisher, any lessor under any lease agreement signed by Advertiser and each of their respective officers, directors, members, employees, agents or representatives against any claim, demand or action arising from or relating to: i) the Advertisement(s), ii) the claims, or suitability of advertised product or service and/or the performances thereof, or iii) any harm the advertised product or service may subsequently cause, including without limitation, any consequential loss, death or injury sustained. The Advertiser may not advertise any product, service, or display content that contains any statement that is false, misleading, fraudulent, libelous, incites or promotes terrorism, pornographic, or contains adult content, hatred against humanity or discriminatory. Company reserves the right at its sole discretion to immediately suspend or remove any advertisement, or cancel an Advertiser account for any breach of this provision without refund to Advertiser.
4.2. Marketing. Advertiser grants Company and Publisher a nonexclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast the Ad and Advertiser’s name, logos, trademarks, trade names, service marks, copyright or patented material, URLs and slogans to advertise, market, promote, collect data and publicize Company’s service including the inclusion of Advertiser in Company’s marketing materials and on Company’s “Advertisers” and “testimonial” page on its web site. Advertiser grants Company and Publisher the right and license to transmit and publish the Ad to the Inventory.
4.3. Representations and Warranties. Advertiser represents and warrants to Company and Publisher as follows:
(3) The Ad or advertisement does not contain any misrepresentation, false or misleading content, or content that is defamatory, offensive or violates any rights of privacy or publicity;
(4) Advertiser is familiar with the nature of mobile marketing and will comply with all laws and regulations that may apply.
(5) The Advertiser and Ad and any advertisement does not and will not infringe any copyright, trademark, patent or other intellectual property or proprietary right.
(6) Advertiser will not create, submit or attempt to use any Ad, or any advertisement which in any way uses, references or has links to any objectionable or improper content including any adult content, profanity, nudity (partial or otherwise), sexually explicit or suggestive language, or any content that promotes, references or facilitates illegal activities, acts of terrorism, or conflicts with any rules, regulations, laws, or statutes whether promulgated by state, national or international regulatory or governing bodies.
(7) Advertiser will protect and maintain the confidentiality of the Confidential Information, will not use any Confidential Information for its own use or benefit or to compete with Company, directly or indirectly in any way. Advertiser will not disclose any Confidential Information to anyone or any entity, ever. Advertiser will not attempt to duplicate or reverse engineer any Confidential Information.
4.4. No Public Release. Neither Advertiser nor Company shall release any information regarding Advertiser’s relationship with Company including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of both Advertiser and Company.
- QUALITY CONTROL. Company reserves the right to refuse service to any new or existing Advertiser, in its sole discretion, with or without cause. Company reserves the right, in its sole and absolute discretion and without liability, to reject, omit, or exclude any Ad for any reason at any time, with or without notice to the Advertiser and regardless of whether such Ad was previously accepted or published. Company will not knowingly accept Ads from Advertisers that produce, provide, or link to adult content which includes nudity, partial nudity, profanity or adult language. Company does not knowingly accept Advertisers that engage in, promote or facilitate illegal activities, supports any act of terrorism or is in conflict with any laws or trade embargo of the United States or the United Nations determinations. Company may in its sole and absolute discretion refuse or restrict use of any Ad that it deems inappropriate or requires special handling. This Agreement is cancelable by Company immediately if Advertiser fails to disclose, conceals, or misrepresents itself in any way.
- OWNERSHIP OF DATA. Advertiser acknowledges that in connection with the publishing of Advertiser’s Ad through the Network, Company may track, record, assimilate, collect, store, retrieve and manage data and other information related to Users, the effectiveness of the Ad or advertising and marketing in general, other advertisers, Publishers, or any other information or data which in any way relates to Company’s provision of the Services and maintenance and operation of the Network (the “Data”). Advertiser acknowledges that the Data is nonexclusive and may be used by Company, as Company may determine, in its sole judgment.
- INDEMNIFICATION. Advertiser hereby agrees to indemnify, defend and hold harmless Company and its affiliates, Publisher and any lessor under a lease agreement and each of their representatives, officers, directors, managers, owners, employees, agents, representatives or assigns (the “Indemnitees”) from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) by reason of any demands, claims, suits or proceedings arising or relating in any way to (a) libel, defamation, violation of right of privacy or publicity, copyright infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the use of Network; (b) any breach by Advertiser of any term, provision, duty, representation, or warranty under this Agreement or any agreement between Company and Advertiser; (c) the exercise of any rights or duties by Advertiser under this Agreement; and/or (d) any Ad.
- DAMAGES. In no event shall either party be liable to the other for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, or loss of income or profits arising hereunder or from the provision of Services.
- WARRANTY DISCLAIMER. Company and Publisher do not make and hereby expressly disclaim all warranties, express or implied, with respect to any matter whatsoever, including, without limitation, the performance of any software programs incidental to services rendered by Company, services provided hereunder, or any output or results thereof and the size, capacity, reach, effectiveness or viability of the Network. Company and Publisher specifically disclaim any implied warranty of merchantability or fitness for a particular purpose.
- LIMITATION OF LIABILITY. Neither Company nor Publisher will be subject to any liability whatsoever for (a) any failure to provide reference or access to all or any part of the Network or Service due to systems failures or other technological failures of Company or of the Internet; (b) delays in delivery and/or non delivery of an Ad, including, without limitation, difficulties with Publisher or Equipment, communications, internet, Network or website, difficulties with a third party server, or electronic malfunction; and (c) errors in content or omissions in any Ad provided by Advertiser. The total liability of Company and Publisher arising out of or relating to this Agreement or the services provided hereunder, whether based in contract, tort or otherwise, shall not exceed the amount paid to Company by Advertiser under this Agreement.
- GENERAL. This Agreement, including all attachments which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Other than Advertiser’s obligations to pay the setup and advertising fees in Section 2, Advertiser’s duties and obligations set forth herein, including without limitation, Advertiser’s confidentiality requirements and Advertiser’s Indemnity obligations shall survive expiration or termination of this Agreement, forever. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither Company nor Advertiser shall hold itself out as the agent of the other. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, Acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
- ASSIGNMENTS. Advertiser may not assign this Agreement, in whole or in part, without written consent from Company. Any attempt to assign this Agreement without such consent will be null and void. Company may assign this Agreement.
- GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Texas. This Agreement is performable in Rockwall County, Rockwall, Texas.
- ABILITY TO ENTER AGREEMENT. Advertiser warrants that Advertiser (or Authorized Representative of Advertiser) is at least 18 years of age, has the appropriate authority to enter into this agreement, and that there is no legal reason that Advertiser cannot enter into a binding contract.
- HEADINGS. The descriptive headings contained herein are for convenience only and shall not control or affect the meaning, interpretation or construction of any provision of this Agreement.
This White Label License Agreement entered into by and between iGo Marketing, LLC dba BoonYah (“BoonYah”), a Texas limited liability company, and the party identified as agreeing electronically to all terms and provisions herein (“Company”) who may be individually referred to as (“Party”) or collectively as (“Parties”) as of the purchase date.
W I T N E S S E T H:
B. BoonYah hereby grants to Company a limited, non-exclusive, non-transferable and non-assignable right and license to use, any and all trademarks, logos, and designs of BoonYah (“BoonYah Trademarks”), together with Company’s trademarks, logos and designs in connection with Company’s advertising, promotion and operation of the BoonYah Software and BoonYah Hardware.
C. It is understood and agreed that BoonYah will be able to license and provide the BoonYah Software, BoonYah Hardware, BoonYah Trademarks and related services to any other third parties including competitors in any location in its sole and absolute discretion, including the locations utilized by the Company. It is further understood and agreed that Company does not possess any rights to lend, lease, rent, sell, redistribute or sublicense the BoonYah Software or BoonYah Hardware without the express, prior written authorization from BoonYah. The Company, its officers, employees, agents, representatives, contractors, or anyone affiliated with or related to Company, may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the BoonYah Software or BoonYah Hardware, any updates, or any part thereof, and Company expressly defends, indemnifies and protects BoonYah from any and all claims, damages or losses in any way related thereto.
D. It is expressly understood and agreed that BoonYah retains all rights not expressly granted hereunder. It is expressly understood and agreed that nothing in this Agreement grants Company ownership or other intellectual property or proprietary rights in or to the BoonYah Software, BoonYah Hardware or BoonYah Trademarks, except in accordance with the terms of this Agreement.
B. This Agreement shall be automatically renewed for additional “Extended Terms” each of one (1) year unless either party notifies the other in writing of its intention not to renew the Agreement, such notification to be provided, in writing, at least forty-five (45) days before the end of the Term then in effect.
B. Termination in the Event of Change of Control. In the event of a Change of Control of Company, BoonYah may terminate this Agreement by providing Company with thirty (30) days’ written notice of such intent to terminate. For purposes of this Paragraph, a “Change of Control” shall mean: (i) the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of a party; or (ii) the acquisition by any individual, entity, or group of beneficial ownership of a controlling interest in Company, provided that a “Change of Control” does not include a reorganization of Company that does not result in a change in the effective control of Company or an initial public offering of Company’s voting stock or an assignment or transfer of this Agreement that is permitted pursuant to this Agreement.
C. Return of Proprietary Information upon Termination or Expiration of Agreement. Upon the termination or expiration of this Agreement, each party shall promptly return all Confidential Information and proprietary information of the other party, and other information, documents, manuals, and other materials belonging exclusively to the other party, except as may be otherwise provided in this Agreement. Each party shall have the right to request, and the other party shall provide, written certification from an executive officer of the other party stating that all such material has been returned or destroyed.
D. Effect of Non-Renewal/Termination. Upon non-renewal, termination or expiration of this Agreement, all licenses granted herein shall immediately and automatically terminate, all rights granted herein shall revert to their original owner, and all payments that have accrued prior to the termination or expiration of this Agreement shall be payable in full within thirty (30) days thereof.
B. BoonYah shall retain all worldwide rights, title, and interest in and to the BoonYah Trademarks and trade names worldwide, including any goodwill associate therewith, subject to the limited license granted to Company hereunder. Any use of any such trademarks by Company shall inure to the benefit of BoonYah, and Company shall take no action that is inconsistent with BoonYah’s ownership thereof.
C. Company hereby grants to BoonYah a non-exclusive, limited license to use its trademarks, service marks, or trade names only in accordance with BoonYah’s performance under this Agreement. All such use shall be in accordance with reasonable policies regarding advertising and trademark usage as established from time to time.
D. Company acknowledges that in connection with the publishing of information through the Network, BoonYah may track, record, assimilate, collect, store, retrieve and manage data and other information related to Users, the effectiveness of the advertising and marketing in general, advertisers, Publishers, or any other information or data which in any way relates to BoonYah’s provision of the Services and maintenance and operation of the Network (the “Data”). Company acknowledges that the Data is nonexclusive and may be used by BoonYah, as BoonYah may determine, in its sole judgment.
6. RECORD INSPECTION AND AUDIT
B. In the event that such inspection reveals an underpayment by Company of the actual fees and other remuneration owed BoonYah, Company shall pay the difference, plus interest calculated at the rate of Five Percent (5%) per month. If such underpayment be in excess of Five Thousand U.S. Dollars ($5,000.00) for any revenue period, Company shall also reimburse BoonYah for the cost of such inspection.
C. All books and records relative to Company’s obligations hereunder shall be maintained and made accessible to BoonYah for inspection at a location in the United States for at least two (2) years after termination of this Agreement.
D. In the event Company breaches this Agreement including without limitation, by failing to timely pay the licensing fees and remuneration to BoonYah or keep and provide statistics as provided in this Agreement and any Exhibit hereto, in addition to any all remedies provided under this Agreement or law, BoonYah reserves the right to assume control and direction of Company’s marketing databases, and related systems and Company grants BoonYah the right to assume control and direction of Company’s marketing databases, and related systems, until such payments are made by Company and received by BoonYah. Such controls include, but are not limited to, diverting of all electronic marketing content and traffic directly to BoonYah servers and databases until such payments are made and received by BoonYah and any breach of this Agreement by Company is timely cured according to the provisions herein.
B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or becomes publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. Company agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of BoonYah for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of ten (10) years thereafter, without the prior written consent of BoonYah. The Company further agrees that Confidential Information shall remain the sole property of BoonYah and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees, officers, agents, brokers, contractors or any related or affiliated company or business. No license shall be granted by BoonYah to Company with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of BoonYah, Company will promptly return all Confidential information furnished hereunder and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.
F. If Company breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, BoonYah shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
G. Except as otherwise set forth in this Agreement, neither party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other, which approval shall not be unreasonably withheld.
8. WARRANTY AND INDEMNITY
B. Company warrants that it is the sole and exclusive owner (or exclusive licensee with sublicensing rights) of any and all Company Content. Company agrees to use the BoonYah Software and BoonYah Hardware at its sole risk and that BoonYah shall not have any liability to Company or any third party for any Company Content or other content that may be found to be offensive, indecent or objectionable. By using the BoonYah Software and BoonYah Hardware, Company further acknowledges and agrees that BoonYah is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of Company Content, third party content or other materials.
C. Company will indemnify, defend and hold harmless BoonYah, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including but not limited to, attorney’s fees) in any way related to Company content, arising from its breach of any warranty or representation under this Agreement, or any claim arising from the BoonYah Software or BoonYah Hardware displayed, used, transmitted or otherwise provided by Company to any third party and any claim arising from any modification made to the BoonYah Software or BoonYah Hardware by Company or by BoonYah at the direction of Company.
D. EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE BOONYAH SOFTWARE AND BOONYAH HARDWARE IS AT COMPANY’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH COMPANY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BOONYAH SOFTWARE AND BOONYAH HARDWARE AND ANY SERVICES PERFORMED OR PROVIDED BY SAME ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BOONYAH HEREBY DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTIBILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SHOULD THE BOONYAH SOFTWARE OR BOONYAH HARDWARE PROVE DEFECTIVE, COMPANY ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
D. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BOONYAH BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITH OUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO COMPANY’S USE OR INABILITY TO USE THE BOONYAH SOFTWARE, BOONYAH HARDWARE OR ANY APPLICATION RELATED THERETO, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BOONYAH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall BOONYAH’S total liability to Company or any third party for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of ONE HUNDRED DOLLARS ($100.00).
B. Company hereby agrees and covenants that only individuals who have registered to become Users will have access to the Company Content.
C. Company will cause all Users to be legally bound by an End-User License Agreement. A copy of the End User License Agreement is attached as “Exhibit C” and incorporated herein by reference.
D. Company hereby acknowledges and understands that BoonYah may amend the End-User License Agreement from time to time at BoonYah’s sole discretion.
10. NOTICE AND PAYMENT
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph. For notice to BoonYah, such notice of payment shall be delivered via electronic mail to firstname.lastname@example.org.
11. EXPORT RESTRICTIONS
13. AGREEMENT BINDING ON SUCCESSORS
SOFTWARE DESCRIPTION AND TECHNICAL SPECIFICATIONS
1. The BoonYah Software
The BoonYah Software will include the following:
The BoonYah system is a software and hardware platform that facilitates an advertiser to display promotional media on an end user’s wireless and other devices (the “Service”). The BoonYah system provides a self-managed portal for advertisers to create and/or upload their own advertising media and activate same for publication.
Updates to the Software may include new and additional information and corrections for errors or other misinformation.
3. Technical Specifications
BoonYah will attempt to meet Company’s technical specifications for the delivery and maintenance of the Software in a timely manner.
4. Changes in Format
Changes to the content format, delivery and timeliness may be made by BoonYah in its sole, reasonable, discretion.
WHITE LABEL STRUCTURE AND COMPENSATION
Company shall pay BoonYah according to the following schedule and rates:
• Technology/Network Fee – Company shall pay BoonYah a one-time non-refundable Technology/Network fee dependent on the White Label Plan purchased.
• Revenue Sharing System Access Fee – Company shall pay BoonYah a monthly Revenue Sharing System Access Fee (“Proceeds”) for access to the BoonYah Software. The Revenue Sharing System Access Fee shall be calculated as a percentage of the gross revenues received by Company from monthly advertising fees collected by Company dependent on the White Label Plan purchased.
BoonYah shall pay the Revenue Share directly to the Company on the 15th of each month, following the month that BoonYah receives advertising revenues. Before the Company receives its Revenue Share, Company shall not be in default of any provision of this Agreement.
END USER LICENSE AGREEMENT
Scope of License: This license granted to You for the Software is limited to a limited, revocable, non-transferable license to use the Software on any wireless phone that You own or control for purposes of receiving advertising content from third parties (“Company Content”). You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof.
Consent to Use of Data: You agree that Licensor and its sub-licensees may collect and use all information You provide as part of any services related to the Software and Company Content. You agree that Licensor may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
Termination: The license is effective until terminated by You or Licensor. Licensor may terminate this license at any time without notice to You. Upon termination of the license, You shall cease all use of the Software, and destroy all copies, full or partial, of the Software.
NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED “AS IS AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Indemnity: YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, DAMAGES, LOSSES, LIABILITIES AND COSTS (INCLUDING ATTORNEYS’ FEES) THAT DIRECTLY OR INDIRECTLY ARISE OR RESULT FROM YOUR USE OR MISUSE OF THE SOFTWARE, OR ANY VIOLATION BY YOU OF ANY OF THE PROVISIONS OF THIS LICENSE AGREEMENT. Licensor reserves the right, at its own expense and in its sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Licensor in asserting any available defenses.
No Export: The Software is subject to all applicable U.S. export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Software and its use. The Software may not be re-exported, download or otherwise exported to, or downloaded or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Governing Law: The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws.
Acknowledgment: BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU HAVE NO RIGHTS TO THE SOFTWARE AND SHOULD NOT INSTALL, COPY, DOWNLOAD, ACCESS OR USE THE SOFTWARE.