This Teemo Offerings Agreement (this “Agreement”) is made and entered by and between (“Company”) and Teemo, Inc. (“Teemo”). In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Teemo Offerings. Teemo offers geo-targeted advertising and other services including, but not limited to, the delivery of third party advertisements (“Ads”) to individuals that use Company’s applications (“Users”) via such Users’ smartphones (“Devices”) (collectively, the “Teemo Services”).
2. Orders. Teemo will provide the Teemo Services pursuant to mutually agreed upon orders (each, an “Order”). Each Order will include a description of the Teemo Services, the nature of the Ads to be served, the Company applications (“Company Properties”), the period during which the Teemo Services will be provided to Company (the “Subscription Period”), the associated fees and payment terms for any payment by Teemo to Company for installing the Tracker in the Company Propertiesand any other reasonable terms. Each Order will be deemed incorporated into this Agreement by reference and made an integral part of this Agreement when each such Order has been signed by each party. The first Order will be denoted as Exhibit A-1, and subsequent Orders will be consecutively numbered in increasing order. To the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms of this Agreement will govern.
3. Grants, Teemo Obligations and Support.
3.1 Teemo Services. In order to receive the Teemo Services, Teemo will make available for download by Company, a tracker as further described in Exhibit B (the “Tracker”). Teemo grants Company a limited, non-transferable, non-exclusive and non-sublicenseable right and license, during the term of this Agreement, to use the Teemo Services and Tracker in connection with the Company Properties.
3.2 Professional Services. In the event that Company elects to have Teemo perform any installation, integration, design, development, operational and/or other professional services (“Professional Services”) and Teemo agrees to perform such Professional Services, the nature of the Professional Services together with the performance timeline and associated fee and payment terms will be set forth in an Order.
3.3 Support. Teemo will use commercially reasonable efforts to provide the standard support (as defined in each Order) provided during the term of this Agreement.
3.4 Teemo Obligations. Teemo will provide the Ads in accordance with the terms and conditions of the applicable Order. The content of such Ads will conform in all material respects to the acceptable use policy (the “Acceptable Use Policy”), as described in our Acceptable Use Policy
4. Activation and Consents.
4.1 Activation. Company will make the Tracker available for the Company Properties. The installation of the Tracker in each Company Property is Company’s sole responsibility.
4.2 User Consents and Restrictions. Company is responsible for obtaining consent from each User to (a) collect the data and information that will be collected by the Tracker (“Data”) including but not limited to geolocation information regarding each User’s Devices, and (b) share Data with Teemo. Any passwords for the Teemo Services or Tracker are Teemo’ Confidential Information. Company will not (and will not allow anyone else to) (i) rent, lease, copy, disclose, provide access to or sublicense the Teemo Services (or any components thereof) or Tracker (or any components thereof); (ii) publicly disseminate information regarding the performance of the Teemo Services or Tracker; (iii) modify, disclose, alter, translate or create derivative works of the Teemo Services (or any components thereof); (iv) disassemble, decompile or reverse engineer the Tracker; (v) use the Tracker to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (vi) copy, frame or mirror any part or content of the Teemo Services; (vii) build a competitive product or service, or copy any features or functions of the Services; (viii) interfere with or disrupt the integrity or performance of the Databerrries Services; (ix) attempt to gain unauthorized access to the Teemo Services or their related systems or networks; (x) use the Tracker, or allow the transfer, transmission, export or re-export of the Tracker or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency.
5.1 Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the components of the business plans, financial plans, know-how, customer information, strategies and other similar information.
5.2 Obligations. The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for the two-year period commencing upon the effective date of termination of this Agreement and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 5. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement: (a) to legal counsel of such party; (b) to such party’s accountants, banks, financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in connection with an actual or proposed merger, acquisition or similar transaction.
5.3 Exceptions. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (“Order”) but solely on the conditions that the Receiving Party: (i) gives the Disclosing Party written notice of the Order within 48 hours after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section
5.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
5.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
6. Fees and Payment Terms. If applicable, the fees and payment terms applicable to the Teemo Services and related support are set forth in each Order. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is finally paid in full.
7. Term and Termination.
7.1 Term. Unless earlier terminated as set forth in this Agreement, this Agreement commences upon the Effective Date and continues until the end of the Subscription Period, and thereafter this Agreement autorenews for a length of time equal to the initial Subscription Period (each such length of time will also be called a “Subscription Period”.)
7.2 Termination. Either party may terminate this Agreement (including all related Orders) by providing written notice to the other party no less than 60 days prior to the end of the then-current Subscription Period. Either party may terminate this Agreement (including all related Orders) for cause if the other party fails to cure any material breach of this Agreement (including a failure to pay fees) within 30 days after written notice.
7.3 Effects of Termination. Upon any expiration or termination of this Agreement, (a) Teemo will cease providing the Teemo Services, (b) Company will cease all use of the Tracker, (c) Company will immediately pay to Teemo all amounts for which Company has contracted. Notwithstanding any terms to the contrary in this Agreement, (i) in addition to this Effects of Termination provision, Sections 5, 6, 9, 10, 11, 12 and 13 will survive any termination or expiration of this Agreement, and (ii) no refunds will be issued.
8. Representations and Warranties.
8.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; (d) this Agreement is valid, binding and enforceable against it in accordance with its terms; and (e) it will fulfill its obligations and exercise its rights under this Agreement in accordance with all applicable laws, Federal Trade Commission guidelines or their equivalents, rules and regulations (including, but not limited to, data security, spyware or adware and privacy laws).
9. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8, EACH PARTY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. TEEMO WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TEEMO. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification Obligations.
10.1 Teemo Obligations. Teemo, at its sole expense, will defend Company from and against any and all third party claims, suits, actions or proceedings (each a “Claim”), and indemnify Company from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) payable to unaffiliated third parties, resulting from (a) any breach or alleged breach of Teemo’ representations or warranties, and (b) the Teemo Services as provided by Teemo or Tracker in the form provided by Teemo violating or infringing any Intellectual Property Rights of any third party. For the purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
10.2 Company Obligations. Company, at its sole expense, will defend Teemo from and against any Claim, and indemnify Teemo from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) payable to unaffiliated third parties, resulting from (a) any breach or alleged breach of Company’s representations or warranties, and (b) the Company Properties violating or infringing any Intellectual Property Rights of any third party.
10.3 Procedure. The indemnifying party’s indemnification obligations under this Section 10 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of it; (b) granting the indemnifying party the option to solely control the defense (including the right to use its own counsel) and settle the Claim (except that the indemnified party must approve any settlement that requires an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and assistance in the Claim’s defense or settlement.
11. Limitation of Remedies and Damages.
11.1 Consequential Damages Waiver. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 5, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR ANY LIABILITY ARISING OUT OF OR RELATED TO ANY PRODUCTS OR SERVICES COMPANY UTILIZES OR PROVIDES (EXCLUDING THE TEEMO SERVICES AND TRACKER), NEITHER PARTY NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2 Liability Cap. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 5, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR ANY LIABILITY ARISING OUT OF OR RELATED TO ANY PRODUCTS OR SERVICES COMPANY UTILIZES OR PROVIDES (EXCLUDING THE TEEMO SERVICES AND TRACKER), EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY TEEMO TO COMPANY DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
11.3 Failure of Essential Purpose. The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. Ownership. As between the parties and subject to the grants expressly set forth in this Agreement, (a) Teemo owns all right, title and interest in and to the Teemo Services, the Tracker, the Feedback (as defined below) and any Intellectual Property Rights embodied in or related to the foregoing, and (b) Company owns all right, title and interest in and to the Company Properties and any and all Intellectual Property Rights embodied in or related to the Company Properties. Notwithstanding the foregoing, Company grants Teemo, for no further consideration, an unrestricted, royalty-free, perpetual, irrevocable license to use, market, import, distribute, copy, modify, prepare derivative works, perform, display, disclose, sublicense and otherwise exploit the Data. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by either party to the other party under this Agreement, by implication, estoppel, or otherwise, except as expressly set forth in this Agreement.
13. General Provisions.
13.1 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement.
13.2 Publicity. Company consents to (a) Teemo’ use of Company’s name and logo on the Teemo websites and publicly-available printed materials, identifying Company as a customer of Teemo and describing Company’s use of Teemo’ products and services, and (b) a press release with respect to Company’s use of Teemo’ products and services.
13.3 Feedback. Notwithstanding any terms to the contrary in the Agreement, any suggestions, comments or other feedback provided by Company to Teemo with respect to the Services or Teemo (collectively, “Feedback”) will constitute Confidential Information of Teemo. Further, Teemo will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
13.4 Subcontractors. Teemo may use the services of subcontractors and permit them to provide the Teemo Services.
13.5 Third-Party Ads. Company acknowledges and agrees that the Ads provided by Teemo to Company pursuant to this Agreement are advertisements from third parties (the “Advertisers”). Use of the Ads is subject to any terms and conditions imposed by the Advertisers. Teemo is not responsible for the Ads or the acts or omissions of the Advertisers.
13.6 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s prior written consent to any third party that purchases all or substantially all of its business or assets by merger, acquisition, sale, reorganization, or otherwise. Subject to the other terms and conditions set forth in this provision, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
13.7 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 10 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
13.8 Waiver and Severability. A party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the parties’ intent with respect to such provision.
13.9 Miscellaneous. This Agreement, including all Orders, constitutes the entire agreement between the parties and supersedes all previous or contemporaneous agreements between the parties, relating to its subject matter, and any change to its terms must be in writing and signed by the parties. The parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument.