FortifyIQ remains the sole owner of its intellectual property rights before, during and after the term of this Agreement including any feedback, suggestions, enhancements, improvements, modifications, publications, techniques, methodologies, trade secrets and communications as they relate to the Services.
Subject to and conditioned on Client’s payment of fees and full compliance with all other terms and conditions of this Agreement, ForitfyIQ grants Client a non-exclusive, non-assignable, non-transferable, revocable license to access and use the Services for the time period separately agreed upon between Client and FortifyIQ.
Client may not share any element of the Services with a third party, nor may Client decompile, reverse engineer or disassemble the Services.
During the term of this Agreement Client grants FortifyIQ, its affiliates and assigns, a world-wide, royalty-free, transferable license to use, copy, reproduce and represent the Client logos and trademarks, and to reproduce, display and represent Client content on all FortifyIQ networks, third party networks and any documentation, printed or electronic, which promotes the Services. FortifyIQ may use Client’s logos and trademarks in its press releases or marketing materials.
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT, FORTIFYIQ AND FORTIFYIQ’S LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FORTIFYIQ AND ITS LICENSORS MAKE NO REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CLIENT, ITS ADVERTISERS OR ANY THIRD PARTIES SHALL RECEIVE FROM FORTIFYIQ OR THE FORTIFYIQ SERVICES PROVIDED UNDER THIS AGREEMENT.
FURTHERMORE, CLIENT WARRANTS TO FORTIFYIQ THAT IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT, THAT IT IS NOT INFRINGING ON ANY RIGHTS OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHTS, THAT IT COMPLIES WITH THE INTERACTIVE ADVERTISING BUREAU GUIDELINES AND BEST PRACTICES, THAT CLIENT COMPLIES WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS, THAT CLIENT’S CONTENT DOES NOT CONTAIN ANY PORNOGRAPHIC, OBSCENE, DEFAMATORY, ILLEGAL, CONTENT AND THAT CLIENT SHALL INDEMNIFY AND HOLD HARMLESS FORTIFYIQ FROM AND AGAINST ALL SUITS, PROCEEDINGS, ASSERTIONS, DAMAGES, INCLUDING DIRECT OR INDIRECT COSTS, LIABILITIES AND EXPENSES, INCLUDING ALL LEGAL FEES, INCURRED AS A RESULT OF ANY BREACH OF THIS CLAUSE OR OF ANY CLAIM WHICH IF TRUE WOULD BE A BREACH OF THIS CLAUSE.
Limitation of Liability
IN NO EVENT SHALL FORTIFYIQ, ITS EMPLOYEES OR OFFICERS BE LIABLE TO THE CLIENT OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR FILES, NON-PERFORMANCE OR MALFUNCTION OF THE SERVICES, SYSTEM ERROR, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF FORTIFYIQ HAS BEEN ADVISED OF THE POSSIBILITY FO SUCH DAMAGES.
FORTIFYIQ’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO FORTIFYIQ UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PERIOD PRECEDING THE DATE THE FIRST LIABILITY AROSE.
Pre-Payment of all fees is required.
Term & Termination
Either party may terminate this Agreement upon sixty (60) days’ notice, or as otherwise set forth in writing in a separately signed Insertion Order.
For purposes of this clause, the term “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, the terms of this Agreement, a party’s finances, Advertiser records and contact information, employee lists, Client Data, information contained within the Client Insertion Order, information about FortifyIQ or FortifyIQ Services, and business, strategic development and marketing plans. Confidential Information will not include: (i) information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party; (ii) information that is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party; (iii) information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; or (iv) information that the receiving party developed independently of any disclosures of such information by the disclosing party. Client may not disclose any Confidential Information to any third party except its employees. FortifyIQ may disclose Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed. The parties agree that monetary damages for breach of confidentiality under this section will not be adequate and the non-breaching party shall be further entitled to injunctive relief. Notwithstanding anything to the contrary contained herein, this Confidentiality provision shall survive the termination of this Agreement and shall be duly enforceable for a period no less than ten (10) years from the date of such termination of the Agreement.
Client shall not, without the express written permission of FortifyIQ, assign at law or in equity, sublicense or deal with any third party as it relates to this Agreement, the agreed upon Services and any other rights granted hereunder.
This Agreement, including its formation, performance, termination and enforcement, together with any related claims whether under contract, tort or otherwise, shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of law principles.
The Parties agree electronic format communication shall be deemed acceptable as a means to relay information as to Insertion Orders or modification of certain portions of this Agreement if supplemented by written acceptance upon agreement.
This Agreement, together with any separately signed Insertion Order, is the complete and the entire agreement between the Parties and supersedes any preexisting agreements, understandings, commitments or representations whether written, oral or implied.
If any provision of this Agreement is deemed invalid or unenforceable by an administrative or judicial body, such invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this agreement or by law be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.
FortifyIQ, Inc. and the logos and associated trademarks are trademarks of FortifyIQ, Inc. Client agrees it will not display or use these trademarks in any manner of form without written authorization from FortifyIQ.