1. License Grant.
HANDI MEDIA hereby grants to CLIENT a limited, non-exclusive, non-transferable, non-assignable world-wide right and license to use the Application only as long as CLIENT maintains its subscription pursuant to these terms and conditions (the “License”). HANDI MEDIA further grants to CLIENT a limited, non-exclusive, non-transferrable, non-assignable world-wide right and license (without payment of any additional fees) to access, copy, and use screen shots of the Application and prepare, copy and use excerpts of the documentation in electronic and hard copy format solely for the purpose of creating and using training materials and documentation for its users of the Application, and to reproduce and distribute such materials to such users for internal training, educational and documentation purposes only, such materials not to leave the ultimate possession and control of CLIENT.
During the Term of this License, each party may be given access to information that is proprietary to or confidential to the other party, including but not limited to, information that relates to the other party’s past, present and future research, development, business activities, internal controls, processes, products, services and technical knowledge, data, financial information, CLIENT information and/or that has been identified as confidential (the “Confidential Information”). The Confidential Information that includes development information and suggestions for improvement and modification of the Application shall be solely and exclusively owned by HANDI MEDIA (regardless of whether such information is developed and/or discovered by CLIENT or HANDI MEDIA). However, Confidential Information that includes information regarding CLIENT’s business shall remain exclusively owned by CLIENT. In connection therewith, the following subsections shall apply:
(a) The Confidential Information of the disclosing party may be used by the receiving party only in connection with the Application or as otherwise permitted pursuant to this License.
(b) Each party agrees to protect the confidentiality of the Confidential Information of the other party using no less than the same degree of care that it uses to protect the confidentiality of its own similar proprietary and confidential information of like kind but in no event less than a reasonable degree of care. Access to the Confidential Information shall be restricted to those of the parties’ personnel with a need to know and engaged in a use permitted hereby and to the directors, officers, financial and legal advisers and controlling persons of the parties.
(c) Except as otherwise expressly authorized hereunder the Confidential Information may not be transferred, published, disclosed or displayed, or otherwise shared with any third party or otherwise used for any purpose not consistent with this License, without the disclosing party’s prior written consent.
(d) Confidential Information made available hereunder, shall be returned, destroyed, or rendered unusable upon request by the disclosing party including all copies and archived versions, except to the extent that retention is required under applicable law or the receiving party’s document retention policies.
(e) Nothing in this License shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) that: (i) was previously known to it without any obligation of confidence; (ii) was independently developed by it without use of the disclosing party’s Confidential Information; (iii) was acquired by it from a third party which is not or was not at the time of the acquisition, to its knowledge, under an obligation of confidence with respect to such information; or (iv) which is or becomes publicly available through no breach of this License.
(f) If either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, it shall provide prompt written notice to the other of such receipt to the extent permitted by law. The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to the extent permitted by law.
HANDI MEDIA represents and warrants that it has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines and procedures consistent with industry standards to exercise commercially reasonable efforts to endeavor to protect CLIENT’s Confidential Information, data, personal information and any other information utilized with the Application against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access, and that HANDI MEDIA, to the best of its knowledge, will comply with all applicable law and regulation. Notwithstanding the foregoing, HANDI MEDIA does not represent or warrant absolute, 100% guaranteed security regarding CLIENT’s Confidential Information or data/information transmitted and/or used in association with the Application, it being acknowledged by CLIENT that data and security breaches occur for reasons beyond the control of HANDI MEDIA and absent any wrongful act and/or omission by HANDI MEDIA. If any such security breach occurs, HANDI MEDIA shall endeavor to provide CLIENT with written notice of such within twenty-four (24) hours of the incident.
4. Personal information.
In the event that CLIENT provides Personal Information to HANDI MEDIA or otherwise uses Personal Information in conjunction with its use of the Application, HANDI MEDIA shall comply with all applicable privacy laws and exercise its best efforts to endeavor to protect the security of such Personal Information. For the purposes of this License, “Personal Information” means information about a directly or indirectly identifiable individual as defined in accordance with applicable privacy laws. Except to the extent necessary for HANDI MEDIA to perform its obligations under this License, HANDI MEDIA shall endeavor to keep Personal information confidential, shall have no rights to Personal information, and, unless otherwise specifically agreed with CLIENT in writing, shall not access, use, process, disclose, or transfer Personal information to any third party during or after the Term of this License. Notwithstanding the foregoing, HANDI MEDIA does not represent or warrant absolute, 100% guaranteed security regarding such Personal Information, it being acknowledged by CLIENT that data and security breaches occur for reasons beyond the control of HANDI MEDIA and absent any wrongful act and/or omission by HANDI MEDIA.
5. Ownership and Rights to Work Product.
(a) HANDI MEDIA Works. CLIENT acknowledges and agrees that the Application provided hereunder, including the code and all processes and development materials associated with the Application, including the look and feel and structure of the Application, as well as any and all improvements, modifications and bug-fixes (regardless of whether such are suggested, discovered and/or implemented by HANDI MEDIA and/or CLIENT, shall be owned exclusively by HANDI MEDIA (collectively, the “HANDI MEDIA Works”). CLIENT acknowledges and agrees that HANDI MEDIA shall retain all and exclusive ownership, right and title to any and all such HANDI MEDIA Works, and HANDI MEDIA shall remain free to use such HANDI MEDIA Works in any other manner and with any other third party, without limitation, for HANDI MEDIA’ benefit, or for the benefit of any third party, without limitation and without any notice or consideration to CLIENT. CLIENT agrees not to develop or reverse engineer or otherwise develop any product or service that is similar to the Application provided hereunder, including copying any code provisions or otherwise develop any software or code or service that has functionality similar to the Application.
(b) CLIENT Data and Other Information. All right, title, and interest in and to any data, information, programs, systems, and materials furnished to HANDI MEDIA by CLIENT, or otherwise used by CLIENT in conjunction with the Application, are and shall remain the exclusive property of CLIENT, and HANDI MEDIA shall not share or transmit any such CLIENT data to any third party. Notwithstanding the foregoing, HANDI MEDIA may use such CLIENT data for purposes of internal testing associated with the Application, and HANDI MEDIA may use screen shots of non-Confidential Information of CLIENT for promotional purposes, as long as such does not include use of Confidential Information and such is not otherwise shared with any third party or used for any purpose inconsistent with this License.
(c) HANDI MEDIA Trademarks and Branding. Any and all goodwill associated with the HANDI MEDIA trademarks, including the name of the Application and any goodwill that may arise through CLIENT’S activities, shall be for the sole and exclusive benefit of HANDI MEDIA. HANDI MEDIA reserves the right to protect the value of the trademarks and IP by rejecting any CLIENT use of the trademarks or IP or any modification thereof, including but not limited to uses in business collateral, that HANDI MEDIA (at its sole discretion) deems an inappropriate use. Any and all costs incurred for removing, deconstructing, or otherwise ceasing unauthorized use of the trademarks or IP will be the sole responsibility and expense of CLIENT.
6. Representations and Warranties.
HANDI MEDIA represents and warrants as follows with respect to the Application provided under this License:
(a) it has the legal right, power and authority to enter into and fully perform this License in accordance with its terms;
(b) it is the owner of or has the legal right to license all software and code included as part of the Application that are provided to CLIENT, including as such is associated with and/or comprises the Application;
(c) (i) following the implementation of the Application by CLIENT, the Application and any included software will be free from material defects and will work as intended and represented by HANDI-MEDIA, which includes facilitating an internet-based software solution enabling companies to conduct high-quality virtual events, sites, conferences and trade shows. If a defect in the Application or software appears, HANDI MEDIA shall correct such defect promptly at its sole cost (unless such defect is caused by CLIENT and/or that HANDI MEDIA has no control over;
(d) it will exercise its best efforts to ensure that the Application and any included software (if applicable) delivered to CLIENT do not contain any viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may have effect or be used to access, alter, delete, damage or disable CLIENT’s information technology infrastructure or any other property of CLIENT (however if CLIENT is in default hereunder, is delinquent in payment of any sums due hereunder and/or upon termination of this License, the Application and any included software may be disabled by HANDI MEDIA);
(e) the use of the Application and any included software (if applicable) will not violate, conflict, infringe upon or misappropriate the rights of any third party including, without limitation, any copyright, trade-mark, trade-name, patent, or any other proprietary right;
(f) the Application will be performed in a professional and workmanlike manner by knowledgeable, trained and qualified personnel in accordance with all applicable laws and regulations and in accordance with the industry standards; and
(g) HANDI MEDIA shall provide the Application in a timely, secure and in the manner, but HANDI MEDIA does not represent or warrant that the Application will be 100% error free and/or without error or default, whether due to HANDI MEDIA error, fault equipment or connection, or whether due to CLIENT’s or end-user’s error, fault, equipment or connection.
Likewise, CLIENT represents and warrants it has the legal right, power and authority to enter into and fully perform this License in accordance with its terms.
7. Term and Termination.
(a) Term. The term of this License shall commence on CLIENT’s payment of the required fees and shall continue in effect for the period covered by the fees paid (the “Term”), unless terminated earlier in accordance herewith.
(b) This License may be terminated, in whole or in part, by either party:
(i) if the other party defaults on any of its material obligations under this License and does not cure such default within thirty (30) calendar days after receiving written notice of such default from the non-defaulting party,
(ii) if the Application fails to perform as represented, after HANDI MEDIA has at least thirty (30) days written notice to cure said failure, CLIENT may terminate; or
(iii) immediately upon written notice if the other party: (A) files a petition for bankruptcy or is adjudicated bankrupt, (B) has a petition in bankruptcy filed against it and such is not dismissed within forty-five (45) days, (C) becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or insolvency law, (D) ceases to carry on business, or (E) has a receiver appointed for its business and such is not removed or dismissed within forty-five (45) days.
(c) If the Application provided by HANDI MEDIA are based upon the subscription basis, then this License and the Application shall be subject to automatic renewal for additional and successive terms equal to the original Term, unless either party provides the other with written notice of termination at least sixty (60) days prior to the expiration of the then current respective Term.
(d) Change in Law. HANDI MEDIA has the right to terminate this License, with at least sixty (60) days prior written notice, in the event that a local, state or federal law or regulation changes an existing law or regulation (or passes a new law or regulation) that substantially changes the obligations and/or costs applicable to HANDI MEDIA’ provision of the Application or frustrates any other term or condition of this License.
8. General Provisions.
(a) No Assignment. This License may not be assigned by CLIENT, either voluntarily or by operation of law, to any other person, entities, firm, or corporation, in whole or in part, without the express written approval of HANDI MEDIA. Any attempt to do so shall be deemed void and of no legal force or effect. This License shall apply to, inure to the benefit of, and be binding upon, either party’s respective permitted successors and assigns.
(b) Notices. Any notice permitted or required under this License must be in writing. Any such notice will be delivered as follows: (a) hand delivery; (b) nationally recognized overnight courier (fully prepaid and with delivery confirmation via UPS, the Canadian or United States Postal Service, FedEx, DHL, etc.); (c) certified Canadian or U.S. Mail, postage prepaid, return receipt requested; or (d) fax or email, with confirmation of transmission. Notices shall be effective upon receipt of confirmation that delivery is complete. All notices shall be addressed to each party as set forth below (or to such other address/addressee or email as either party may from time to time duly notify the other).
If to HANDI MEDIA, addressed to:
HANDI MEDIA USA, LLC
4001 S Decatur Blvd., Ste 37 – 199
Las Vegas NV 89103
Attention: Stephen Handisides
If to CLIENT, addressed as provided by CLIENT
(c) Indemnity and Limitation of Liability/Damages.
(i) CLIENT shall indemnify, defend and save harmless HANDI MEDIA, its officers, officials, employees and agents, from and against any and all third-party losses, liabilities, damages, costs, assessments, expenses (including, without limitation, interest, penalties, fines, expert fees, court costs and reasonable attorneys’ fees), incurred in connection with any and all third-party causes of action, claims, demands, actions, suits, proceedings, settlements and judgments which HANDI MEDIA may incur or suffer or be put to by reason of any act or omission of CLIENT constituting a breach of this License, or if not constituting a breach of this License, otherwise constituting a wrongful or intentional act or omission, including actions or omissions by not only CLIENT, but also its officers, employees, agents or subcontractors which relates to this License, however arising.
(ii) HANDI MEDIA will indemnify, defend and save harmless CLIENT, its officers, officials, employees and agents, from and against any and all third-party losses, liabilities, damages, costs, assessments, expenses (including, without limitation, interest, penalties, fines, expert fees, court costs and reasonable attorneys’ fees), incurred in connection with any and all third-party causes of action, claims, demands, actions, suits, proceedings, settlements and judgments, that CLIENT may suffer or incur arising out of or in connection with any claim that the Application violates or infringes upon the rights of any third party or otherwise breaches an applicable law or regulation.
(iii) CLIENT will indemnify, defend and save harmless HANDI MEDIA, its officers, officials, employees and agents, from and against any and all third-party losses, liabilities, damages, costs, assessments, expenses (including, without limitation, interest, penalties, fines, expert fees, court costs and reasonable attorneys’ fees), incurred in connection with any and all third-party causes of action, claims, demands, actions, suits, proceedings, settlements and judgments, that HANDI MEDIA may suffer or incur arising out of or in connection with any claim, loss or damage sustained by HANDI MEDIA arising out of or in connection with any use by CLIENT of HANDI MEDIA’S Application, solutions or other deliverables/intellectual property in conformance with this License, and/or any CLIENT breach of an applicable law or regulation. Specifically, and not in limitation, the indemnification provided by CLIENT pursuant to this Section shall cover any and all uploads by CLIENT of personal information, personal images, likenesses and/or content owned by third parties in using the Application, as CLIENT expressly agrees and acknowledges that HANDI MEDIA is in no way in control of or otherwise responsible or liable for the manner in which CLIENT uses the Application or the information or images uploaded by CLIENT.
(iv) EXCEPT WITH RESPECT TO A PARTY’S LIABILITY OR RESPONSIBILITY FOR (I) GROSS NEGLIGENCE OR INTENTIONAL WRONGDOING, (II) IP INFRINGEMENT CLAIMS AND/OR (III) INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE, WHETHER SUCH DAMAGES ARE BASED IN BREACH OF CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(v) IN NO EVENT SHALL HANDI MEDIA’ LIABILITY OR OBLIGATION TO PAY DAMAGES HEREUNDER EXCEED THE FEES PAID TO HANDI MEDIA OVER THE PRIOR TWELVE (12) MONTH PERIOD, PLUS ANY ATTORNEY’S FEES AWARDED TO CLIENT IN CONNECTION WITH ANY CLAIMS HEREUNDER.
(vi) The provisions of this Section shall survive the expiration and/or earlier termination of this License.
(d) Independent Contractors. It is expressly agreed and understood that HANDI MEDIA is acting as an independent contractor and not as an employee of CLIENT in providing the Application hereunder. The parties acknowledge that this License does not create a partnership or joint venture between them.
(e) Force Majeure. Neither party shall be responsible for delays nor failures of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, pandemic, governmental lock-downs and/or orders, riots, acts of war, acts of terrorism, epidemics, governmental regulations, power failure(s), earthquakes, or other disasters. Performance times shall be considered to be extended for a period of time equivalent to the time lost because of such delay.
(f) Counterparts. This License may be executed and delivered in counterparts in original, faxed or pdf form and each such counterpart will constitute an original document and such counterparts, taken together, will constitute one and the same instrument.
(g) Governing Law and Venue. The terms and conditions set forth in this License and each SOW made a part hereof and attached hereto shall be governed by, and construed and enforced in accordance with the applicable laws of the State of Texas, without giving effect to the conflict of law principles. The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state or federal courts of Texas, located in Dallas County for any matters to arise under this License and which are not settled.
(h) Entire Agreement. This License, along with all SOWs, schedules, exhibits and attachments hereto, constitutes the complete and entire agreement and understanding of the parties with respect to the subject matter of this License and supersedes all prior Licenses. This License may not be amended unless it is agreed to in writing by both parties.
(i) Defamatory/Disparaging Remarks. In exchange for the consideration set forth herein, each party contractually agrees that, both during and after the Term of this License, that it shall refrain from publishing any oral or written statement about the other party, or its officers, employees, agents, or representatives that (i) are disparaging, slanderous, libelous, or defamatory; (ii) disclose private or confidential information about their business affairs; (iii) constitute an invasion into their seclusion or private lives; (iv) give rise to unreasonable publicity about their private lives; (v) place them in false light before the public; or (vi) constitute a misappropriation of their name or likeness.