MSA

THIS MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF THE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on July 30, 2020 and is effective between You and Us as of the date You accept this Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1 DEFINITIONS.

“Customer” means the customer accepting this Agreement.

“Customer Data” means all data (including Personal Data and End User data) that is provided to Rock Content or any subsidiaries by, or on behalf of, Customer through Customer’s use of the Services, and any data that third parties submit to Customer through the Services.

“Deliverable” means any service, creative, or other document, or other electronic or tangible work product commissioned by, and developed specifically for, Customer that Rock Content is required to deliver to Customer as part of Project Services.

“Intellectual Property Rights” or “IP” means current and future worldwide rights under patent, copyright, design rights, trade secret, trademark, moral rights, and other similar rights, whether registered or unregistered.

“Order Form” means an order form, sales order, sales quote, statement of work (“SOW”), or similar document referencing and made under this Agreement and executed by the parties.

“Personal Data” means information relating to a living individual who is, or can be, reasonably identified from information, either alone or in conjunction with other information, within Customer’s control and which is stored, collected or processed within one of Customer’s Rock Content End User accounts.

“Privacy Policy” means the Rock Content Privacy Policy, https://rockcontent.com/legal/privacy-policy/
“Project Services” means professional services, implementation services, consulting services, or other project-based services.

Project Services are not subscriptions.
“Services” means the services ordered by Customer on an Order Form, including but not limited to Subscriptions and Project Services.

“SSTs” means service-specific terms that apply to specific Services (including Subscriptions and Project Services) and that are incorporated into and form a part of this Agreement.

“We”, “Us”, or “Our” means the applicable Rock Content entity described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Arbitration).

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

“O ur Platforms” means our software products sold to our customers. These include, but are not limited to:

  • Stage: Our customer experience and website hosting Platform

  • Studio: Our content marketing Platform

  • Visually: Our creative talent marketplace Platform

  • Ion Interactive: Our interactive Content Platform

  • Live (f/k/a Engage): Our Live Blogging Platform

  • Studio: Our management software for advertising agencies

  • Community Content

2 SERVICES.

2.1  Provision of Services. We shall make the Purchased Services available to You pursuant to this Agreement and the applicable Order Forms during each term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2  Order Forms. The parties may enter into Order Forms under this Agreement. Rock Content and Customer may agree that Customer’s affiliates may enter into Order Forms under this Agreement. Any such Order Form may be executed by Rock Content or a Rock Content affiliate pursuant to the requirements for Rock Content entities under Section 14. Any reference in the Agreement to “Customer” will refer to the Customer entity signing the Order Form and any reference in the Agreement to “Rock Content.” will refer to the Rock Content contracting entity signing the Order Form. Each Order Form will incorporate the terms and conditions of this Agreement and will be a separate contract between the entities entering into the Order Form.

2.3  Third Party Services. If Customer integrates the Services with any non-Rock Content provided third party service (such as a third party’s service that uses an application programming interface (API)), Customer acknowledges that such third party service might access or use Customer Data and Customer permits the third party service provider to access Customer Data as required for the interoperation of that third party service with the Services. Customer is solely responsible for the use of such third-party services and any data loss or other losses it may suffer as a result of using any such services.

2.4  Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below or as expressly permitted in writing by You, or (c) access Your Data except to provide the Purchased Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. You acknowledge and agree that Your Data will be hosted and stored by Amazon Web Services (AWS).

3 TYPES OF SERVICES.

3.1 Subscriptions. Subscriptions are subject to the following terms, unless otherwise agreed on an Order Form:

  1. (a)  License. Subject to this Agreement and applicable Additional Terms, Rock Content grants to Customer a non-exclusive, non-sub licensable, non-transferable license during the term stated on the applicable Order Form and/or SOW solely for Customer internal business purposes and in accordance with the limitations under the applicable Additional Terms. Customer may; (i) access and use the Services and in accordance with the documentation provided by Rock Content; and

    (ii) use and reproduce a reasonable number of copies of the documentation solely to support Customer use of the Services.

  2. (b)  Subscription Term. The initial term of each subscription is specified on the Order Form. Subscriptions will automatically renew at the end of each subscription term for additional periods equal to current term, unless either party gives the other written notice of non-renewal at least 30 days before the end of the then-current subscription term. If not specified, the default term shall be twelve (12) months.

    Services. Project Services are subject to the following terms, unless otherwise agreed on an Order Form:

  1. (a)  Project Term. The term of a Project Service ends upon a date determined in the specific Order Form related to those Project

    Services, unless earlier terminated.

  2. (b)  Scope of Project Services. Rock Content will provide Project Services to Customer in accordance with an Order Form (which may alternatively be entitled a “Statement of Work”), including any specifications, timetables, and acceptance criteria and procedures described therein.

  3. (c)  Ownership of Deliverables. Customer will own all Intellectual Property Rights in any Deliverables, and Rock Content hereby assigns all Intellectual Property Rights in any Deliverables to Customer. Notwithstanding the foregoing, nothing in this Agreement will assign or vest ownership of any Rock Content Background IP from Rock Content to Customer. Customer grants Rock Content and its affiliates a worldwide, royalty-free, non-exclusive license during the Term to use, reproduce, distribute, modify, and adapt the Deliverables for the purpose of providing the Services to Customer in accordance with this Agreement.

4 SERVICE FEATURES.

4.1  Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future features or functionality, or dependent on any oral or written public comments made by Rock Content regarding future features or functionality.

4.2  Changes to Services. Rock Content continually changes and improves the Services. Rock Content may add, alter or remove functionality from such Services at any time without prior notice, provided that Rock Content will provide Customer with prior written notice if Rock Content makes a change to the Services resulting in a material decrease in core functionality used by Rock Content general customer base.

5 FEES.

5.1 Fees. Customer will pay to Rock Content all applicable fees for the Products and Services specified in each Order Form.

5.2  Fees applicable to any Renewal Term will be at our then-current rates, provided that we have notified you of any applicable increase prior to the date by which you may opt out of the renewal. Fees are payable in the currency specified in the Order and are not refundable except as expressly stated herein. You agree to the issue and acceptance of invoices in electronic format. We will invoice you immediately upon execution of the Order and on each renewal date thereafter. Invoices will be sent to the billing contact you designate in the Order or the administrative console. If you elect to pay via credit or debit card, we will charge the provided credit or debit card immediately upon account activation and on each renewal date thereafter, up to one week prior to the due date. If you elect to pay by any other method, payments are due 7 days from your receipt of the applicable invoice. It is your responsibility to maintain accurate and up-to-date billing details and ensure the Fees are paid by the due date. If you fail to maintain accurate and up-to-date billing details, your account may be suspended until such details are provided. If you are overdue on any Fees, we may: (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, (ii) suspend provision of the Services, and (iii) terminate the Agreement. You will be responsible for any charges associated with our collection efforts related to unpaid Fees.

5.3  Invoicing and Payment Terms. Unless stated otherwise on Order Form or SOW, Services will be billed at the start of Customer term and payments are due upon receipt of invoice. Customer has a good faith belief that Customer have been incorrectly billed by Rock Content (or any Rock Content affiliate), Customer must provide notice, in writing within seven (7) days following receipt of the applicable invoice specifying the calculation error and the amount of the adjustment or credit requested. Unless Customer have provided notice of such dispute with invoiced fees, payments not received by the due date shall bear interest of one and one-half percent (1.5%) or the maximum rate allowed by law. Customer shall be responsible for all reasonable 3rd party collection costs & legal fees incurred by Rock Content (or any Rock Content affiliate), in collecting amounts due. Rock Content reserves the right to revoke any discounts applied to invoices past due. In the event of nonpayment, Rock Content may, in addition to any other rights or remedies available to it at law or in equity, suspend Services. Customer shall pay to Rock Content all applicable sales or use taxes assessed by a government authority with respect to the Services provided by Rock Content under applicable Order Form and/or SOW.

5.4  Taxes. You agree to pay any applicable taxes (excluding taxes on our income) which we are required to collect unless you provide us with a valid tax exemption certificate. If you elect to make any payment via wire or credit transfer, then you are responsible for any applicable transfer fees. Any applicable

5.5  Currency. All monetary amounts in this Agreement are denominated in the currency stated on the Order Form. Fee payments by Customer must be received by Rock Content in the same currency as such fees were billed.

6 CUSTOMER OBLIGATIONS.

6.1  Third Party Requests. The parties may from time to time receive a request from a third party for records related to Customer’s use of the Services, including information in a Customer End User account or identifying information about a Customer End User (“Third Party Request”). Third Party Requests include search warrants, subpoenas, and other forms of legal process.

  1. Customer is responsible for responding to Third Party Requests via its own access to the information, and will only contact Rock Content if Customer is unable to obtain such information after diligent efforts. If Rock Content receives a valid Third-Party Request then, to the extent permitted by law, Rock Content:

    1. (a)  may inform the third party issuing such request that it should pursue the request directly with Customer; and

    2. (b)  will: (i) promptly notify Customer of the Third Party Request; (ii) cooperate, at Customer’s expense, with Customer’s reasonable requests regarding Customer’s efforts to oppose a Third Party Request; and (iii) after providing Customer with an opportunity to respond to or oppose the Third Party Request, Rock Content may fulfill that request if Rock Content determines that it is required or permitted by law to do so.

6.2  Embargoes. Customer represents and warrants that it is not barred by any applicable laws from being supplied with the Services. The Services may not be used in any country that is subject to an embargo by the United States or European Union applicable to the Services. Customer will ensure that: (a) its End Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) it does not provide access to the Services to persons on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals.

6.3  Suspension of Services. Rock Content may limit or suspend the Services from time to time at its discretion, for example, to perform scheduled maintenance. If the circumstances reasonably permit, Rock Content will give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it, or address the issue that has prompted Rock Content to take such action. There may be some situations, such as security emergencies, where it is not practicable for Rock Content to give such advance notice. Rock Content will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.

7 SECURITY AND PRIVACY.

7.1  Security. Rock Content has taking into account the state of the art, cost of implementation, the nature, scope, context and purposes of the Services, and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to Customer Data. At reasonable intervals, Rock Content tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.

7.2  Privacy Policy. Customer has read and acknowledges the applicability of the Privacy Policy to this Agreement. Customer also acknowledges that Rock Content may revise the Privacy Policy from time to time. When Rock Content makes a change to this policy that, in Rock Content’s sole discretion, is material, Rock Content will notify you. B y continuing to access or use the Services after those changes become effective, you agree to be bound by the revised Privacy Policy.

7.3 Data Protection. Where Rock Content is processing Personal Data for Customer, Rock Content will:

  1. (a)  only do so on documented Customer instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that this Agreement and the Rock Content Privacy Policy constitute such documented instructions of the Customer;

  2. (b)  To the extent applicable, Rock Content relies upon (i) Rock Content’s Privacy Shield certification and/or standard contractual clauses and/or consent for data transfer to the United States to Rock Content Inc., and (ii) standard contractual clauses for data transfers to countries outside the European Economic Area, other than the United States, that do not have adequate levels of data protection as determined by the European Commission. Customer appoints Rock Content as its agent for purposes of entering into any standard contractual clauses for such purposes on Customer’s behalf;

  3. (c)  ensure that all Rock Content personnel involved in the processing of Personal Data are party to confidentiality obligations in respect of the Personal Data;

  4. (d)  cooperate as reasonably requested by Customer (at Customer’s expense) to enable Customer to comply with any exercise of rights by a data subject under the General Data Protection Regulation in respect of personal data processed by Rock Content in providing the Services;

  5. (e)  promptly notify Customer of all requests received directly from a data subject of any of the Personal Data in respect of that data subject’s Personal Data submitted through the Services;

  6. (f)  cooperate with the Office of the Data Protection Commissioner or any replacement or successor body from time to time (or, to the extent required by the Customer, any other data protection or privacy regulator) in the performance of such regulator’s tasks where required;

  7. (g)  not store Personal Data (in a format that permits identification of relevant data subjects) for longer than is necessary for the purposes for which the data is processed save to the extent such retention is required for legitimate business purposes (with respect to, for example, security and billing), in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes; and

  8. (h)  assist Customer as reasonably required (at Customer’s expense) where Customer conducts a Data Protection Impact Assessment involving the Services.

  1. 8  PURPOSE AND NATURE. Rock Content will process Customer Data for the purposes of providing the Services to Customer in accordance with the Terms.

  2. 9  CUSTOMER DATA. Customer Data includes personal and sensitive data granted by the Customer to Rock Content through the Platforms, as well as those included by the Data Owner in Customer’s website and those that Rock Content will have access.

  1. 9.1  Sub-processing. Customer provides a general authorization to Rock Content to engage onward sub-processors.

  2. 9.2  Sub-processor List. Rock Content will, subject to any confidentiality provisions under this Agreement or otherwise imposed by

    Rock Content:

    1. (a)  make available to Customer a list of the Rock Content subcontractors (“Sub-processors”) who are involved in processing or sub-processing Personal Data in connection with the provision of the Services, together with a description of the nature of services provided by each Sub-processor (“Sub-processor List”).

    2. (b)  ensure that all Sub-processors on the Sub-processor List are bound by contractual terms that are in all material respects no less onerous than those contained in this Agreement

  3. 9.3  New / Replacement Sub-processors.

    Rock Content will provide Customer with written notice of the addition of any new Sub-processor or replacement of an existing Sub- processor at any time during the term of the Agreement (“New Sub-processor Notice”). If Customer has a reasonable basis to object to Rock Content’s use of a new or replacement Sub-processor, Customer will notify Rock Content promptly in writing and in any event within 15 days after receipt of a New Sub-processor Notice. In the event of such reasonable objection, either Customer or Rock Content may terminate the portion of any Agreement relating to the Services that cannot be reasonably provided without the objected-to new Sub-processor (which may involve termination of the entire Agreement) with immediate effect by providing written notice to the other party. Such termination will be without a right of refund for any fees prepaid by Customer for the period following termination.

  4. 9.4  Security Incident. If Rock Content becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, Personal Data (“S ecurity Incident”), Rock Content will take reasonable steps to notify Customer without undue delay, but in any event within 48 hours of becoming aware of the Security Incident. Rock Content will also reasonably cooperate with Customer with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any information reasonably requested by Customer in relation to any Security Incident.

  5. 9.5  Audits. Rock Content agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any

certifications and compliance standards it maintains and will, on request, make available to Customer an executive summary of Rock Content’s most recent annual penetration tests, which summary shall include remedial actions taken by Rock Content resulting from such penetration tests.

(a) Rock Content will inform Customer if it comes to its attention that any instructions received in respect of this Section 7.8 infringe the provisions of the General Data Protection Regulation or other applicable EU or EU Member State data protection law. Notwithstanding the foregoing, Rock Content shall have no obligation to review the lawfulness of any instruction received from the Customer.

The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over the Customer, this Section 7.8 sets out the entire scope of the Customer’s audit rights as against Rock Content.

9.6 Customer Privacy Obligations. Customer shall ensure and hereby warrants and represents that it is entitled to transfer the Customer Data to Rock Content so that Rock Content may lawfully process and transfer the Personal Data in accordance with this Agreement. Customer shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.

10 INTELLECTUAL PROPERTY.

10.1  Customer IP. As between the parties, the Customer retains ownership of all Intellectual Property Rights in the Customer Data. This Agreement does not grant Rock Content any licenses or rights to the Customer Data except for the following:

    1. (a)  Customer grants Rock Content and its affiliates a worldwide, royalty-free, non-exclusive, limited license to use, host, copy, transmit, modify, display, and distribute Customer Data only for the limited purposes of providing the Services to Customer and improving the Services.

    2. (b)  If Customer provides Rock Content with feedback about the Services, Rock Content may use that feedback and incorporate it into its products and services without any obligation to Customer.

  1. 10.2  Rock Content IP. As between the parties, Rock Content retains ownership of the Services and all related Intellectual Property Rights. No licenses or rights are granted to Customer by Rock Content other than as expressly provided for in this Agreement. Except as permitted by Rock Content’s brand and trademark use policies, this Agreement does not grant the Customer any right to use Rock Content’s trademarks or other brand elements.

  2. 10.3  Customer Lists. Rock Content may identify Customer by name and logo as a Rock Content customer on Rock Content’s website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.

  3. 10.4  Restrictions. Customer agrees that Customer will not, and will not permit any other party to: (i) allow any third party to access the Services or documentation, except as expressly allowed herein; (ii) modify, adapt, alter or translate the Services or documentation;

(iii) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or documentation for the benefit of any third party; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (v) create derivative works based on the Services or documentation; or (vi) access or use the Services for the purpose of developing or creating a competitive service or product.

11 CONFIDENTIALITY.

  1. 11.1  Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

  2. 11.2  Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates without the other party’s prior written consent.

  3. 11.3  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

12 WARRANTIES.

12.1  Our Warranties. We warrant that (i) we have validly entered into this Agreement and have the legal power to do so, (ii) the Purchased Services shall perform materially, and (iii) the functionality of the Purchased Services will not be materially decreased during a subscription term. For any breach of a warranty above, Your exclusive remedy shall be as provided in the “Termination” sections below.

12.2  Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

12.3  Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR

13 INDEMNITIES.

13.1  Indemnification by Us. We shall defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You, (b) gives Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability), and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Purchased Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Purchased Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Purchased Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

13.2  Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, and for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability), and (c) provide to You all reasonable assistance, at Your expense.

13.3  Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

14 LIABILITIES.

14.1  Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THE FOREGOING LIMIT SHALL NOT APPLY TO YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT FOR PURCHASED SERVICES” SECTION ABOVE.

14.2  Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

15 TERM AND TERMINATION.

15.1  Term of Agreement. This Agreement commences on the Effective Date and continues until there are no further SOWs or Order Forms that are active between the Parties.

15.2  Term of User Subscriptions. User subscriptions for Purchased Services commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods of one year each, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

15.3  Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors

15.4  Surviving Provisions. The sections titled “Fees,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,”, “Surviving Provisions,” “Who You Are Contracting With, Notices, Governing Law and Arbitration,” and “General Provisions” shall survive any termination or expiration of this Agreement.

16 WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND ARBITRATION

16.1 General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any dispute arising out of or in connection with this Agreement, and where and how such disputes will be resolved, depend on where You are domiciled.

Contracting Entity Governing Law

Visually, Inc.
Scribble Technologies, Inc.
Rock Content Serviços de Midia LTDA

Delaware Ontario
Belo Horizonte

Contracting Entity Table

  1. (a)  Contracting Entity. References to the applicable Contracting Entity specified in Contracting Entity Table. The Services are provided by that contracting entity.

  2. (b)  Governing Law. This Agreement is governed by the laws of the applicable jurisdiction specified in the Contracting Entity Table, without giving effect to any of its conflicts of laws principles.

  3. (c)  Notice.

    Notices to Rock Content Notices to Rock Content must be sent to Rock Content, 1095 Broken Sound Pkwy NW #200, Boca Raton, FL 33487 marked to the attention of the Legal Department. Email is insufficient for providing non-routine legal notices (including indemnification claims, breach notices, and termination notices) (“Non-Routine Legal Notices”) to Rock Content Customer may grant approvals, permission, extensions, and consents by email. All notices must be in writing and will be deemed given when: (i) personally delivered, (ii) verified by written receipt, if sent by postal mail with verification of receipt service or courier, (iii) received, if sent by postal mail without verification of receipt, or (iv) verified by automated receipt or electronic logs if sent by email.

    Notices to Customer. Notices to Customer may be sent to the email address associated with Customer’s designated primary administrator for the relevant Service (“Primary Admin”). Billing-related notices (including notices of overdue payments) may be sent to the relevant billing contact designated by Customer. If Customer has provided contact details for legal notices on the cover page of this Agreement, any Non-Routine Legal Notices will be provided to such contact instead, with a copy to the email address associated with Customer’s Primary Admin.

  4. (d)  Keep Contact Details Current. Customer must keep the contact details associated with their user accounts and billing contacts current and accurate, and notify Rock Content in writing of any changes to such details.

  5. (e)  Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential and binding arbitration in Delaware before a single arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties agree to keep all disputes arising under this Agreement confidential, except as necessary in connection with a judicial challenge to or enforcement of an award or unless otherwise required by law or judicial decision. The arbitrator may issue orders to treat any information regarding such proceedings, including the award, as Confidential Information under this Agreement. This Section shall not preclude either party from seeking equitable relief to protect its interests, including but not limited to injunctive relief, from a court of appropriate jurisdiction. The prevailing party in any action arising from or relating to this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs including, without limitation, arbitration fees and fees of experts.

17 GENERAL.

17.1  Amendments. This Agreement may only be amended if authorized representatives of each party agree in a signed writing.

17.2  Assignment. Neither Customer nor Rock Content may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, either party may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of such party’s assets or of the Rock Content business line to which the subject matter of this Agreement relates. Any other attempt to transfer or assign is void.

17.3  Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument.

17.4  Entire Agreement. This Agreement (including any documents incorporated herein by reference to a URL or otherwise, and any Order Form prepared for the Customer by Rock Content), constitutes the entire agreement between Customer and Rock Content and it supersedes any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by Customer do not apply to the Services, do not override or form a part of this Agreement, and are void.

17.5  Force Majeure. Neither Rock Content nor Customer will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or internet disturbance) that was beyond the party’s reasonable control.

17.6  Independent Contractors. The relationship between Rock Content and Customer is that of independent contractors, and not legal partners, employees, joint ventures, or agents of each other.

17.7  Interpretation. The use of the terms “includes”, “including”, “such as” and similar terms, will be deemed not to limit what else might be included.

17.8  No Waiver. A party’s failure or delay enforcing a provision under this Agreement is not a waiver of its right to do solater.

17.9  Precedence. If any conflict exists among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) this Agreement, and (3) the applicable SSTs. Any terms set forth under a “Special Terms” heading in any of the foregoing documents will take precedence over any other terms to the contrary in that document.

17.10  Severability. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed, and the remainder of terms will remain in full effect.

17.11  Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.

17.12  Modifications. To the extent allowed by law, Rock Content reserves the right, at its sole discretion, to modify or replace this Agreement and/or Additional Terms, or change, suspend, or discontinue the Services at any time by posting a notice or by sending You an email, both of which would be deemed a modification of the Agreement and/or Additional Terms. It is Your responsibility to check this Agreement and Additional Terms periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement and/or Additional Terms constitutes acceptance of those changes.

SOFTWARE AS A SERVICE PLATFORM TERMS OF SERVICE: ION INTERACTIVE, LIVE, STAGE, STUDIO, ICLIPS

Use License. Subject to Customer compliance with the Agreement, Additional Terms, and to payment of all outstanding fees, Rock Content grants to Customer, during applicable term, a non-transferable, non-exclusive right and license to use the Platform solely for Customer internal business purposes.

Limits. Each subscription level offers a different level of access as outlined in the applicable Order Form. Customer may not access or use those features within subscription levels of the Services to which it has not subscribed without payment of additional fees. Rock Content reserves the right to periodically verify that your use of the Services complies with the terms of applicable Order Form and subscription level access.
Ownership. It is expressly agreed that all right, title, and interest in and to the technology used in connection with the delivery of Services (including any and all modifications, improvements or enhancements to the ion Platform as a result of any implementation Services rendered) are and shall remain the sole and exclusive property of Rock Content. Notwithstanding the foregoing, it is expressly agreed by Rock Content that all Content provided by Customer and all Customer data collected by Customer (“Data”) is and shall remain Customer’s exclusive property.
Images. Any photography, images and/or icons (collectively, ‘Images’) delivered with the Services requires written permission, by Rock Content, for reproduction or use outside of the Services. Images provided with the Services may be owned by a third party and licensed by Ion under different terms. Rock Content will not be held liable or responsible for any unlawful use or alteration of Images by Customer. It is Customer’s responsibility to maintain and uphold the rules and regulations that pertain to any Images reproduced or used by Customer outside of the Services.
Restricted Data. Customer may not use the Services to collect or retain restricted information. “Restricted Data” means financial information, Social Security number, driver’s license number, passport number, and information protected by, inter alia, Family Educational Rights and Privacy Act (“FERPA”), the Gramm Leach Bliley Act (“GLBA”), Health Insurance Portability and Accountability Act (“HIPPA”) and/or Social Security Number Protection Act, or any other Data whose collection is restricted or prohibited under Applicable Laws. “Applicable Laws” means all applicable federal, state, and local statutes, laws, ordinances, regulations, rules, codes, governmental orders, requirements or rules of common law.
Authorized Users. Customer is fully responsible for all activities that occur under Customer account, including for any actions taken by persons to whom Customer has granted access to. You may designate a number of Authorized Users in the administrative console for the purpose of receiving support and making changes to your account. You are responsible for managing your Authorized Users and keeping them up-to-date. You authorize us to provide all applicable support and account information to your Authorized Users and to make modifications to the Services at their direction. You may only add, modify, or remove Authorized Users through the administrative console. We will provide support, assistance, and information to your Authorized Users who can verify their identity through the administrative console. Notwithstanding the foregoing, if you pay for the Services with a credit or debit card, we may remove that card as a payment method at the request of any individual who is able to provide reasonably satisfactory evidence that he or she is the named individual on such credit or debit card. You will require your Authorized Users to abide by the terms of the Agreement, and you acknowledge and agree that you are fully responsible for the actions and omissions of your Authorized Users and for all costs, overages, or other liabilities incurred through your account except to the sole extent that any such use or liability is the result of our breach of the Agreement. An Authorized User, within the scope of permissions granted to such user in the administrative console, may make changes to the Services, and you agree to pay any Fees associated with such changes. You shall promptly notify us in the event that you become aware of any violation of the terms of the Agreement or any unauthorized use of the accounts of you or your Authorized Users.

Authorized Users seeking support must have a basic understanding of the systems and technology related to the Services. The scope of Services provided under the Agreement may be amended by any reasonable means showing mutual agreement between the Parties including click-through terms, email, support ticket, or your selections in the administrative console. Any associated fees will be clearly and conspicuously provided to you before you agree to any such change. From time to time, we may provide replacements for certain components of the Services or cease supporting them altogether. No such replacement or end of life shall constitute a breach of the Agreement. If you request or utilize any Beta Services, such Beta Services shall be provided on an AS-IS basis with all faults. No SLA, indemnity, representation, or warranty shall apply to Beta Services. We reserve the right to terminate the Beta Services at any time and make no representation that Beta Services will be released into production.

Security. You are responsible for maintaining the security of their account and recognizes that, in any case, you are solely responsible for its use, as well as for any content or Malicious Code uploaded to our systems. You are solely responsible content published to your websites hosted on Rock’s platforms by any Authorized User associated to your administrative console. We do not guarantee the absence of Malicious Code on it’s platforms, as well as other harmful elements that may cause alterations in the computer systems of the User (software and hardware) or electronic documents that are stored on the computer system. We have no legal liability or responsibility for loss or damage that may arise from the presence of Malicious Code or other harmful elements to your hosting environment. We shall under no circumstances be liable for any damage arising from the interruption of access to or failure to the operation of Our Platforms, caused by a third-party event or accident. We adopt the best recommended market practices to keep all data entered by the user safe. However, Rock Content disclaims liability for damages of all kinds that may arise from the knowledge that unauthorized third parties may have of any information passed on, as a result of failure solely attributable to the user or to third parties who evade any reasonable control of Rock Content. Rock Content will not, under any circumstances, be responsible for any damages resulting from the interruption of access to or failures in the operation of Our Platforms caused by a third party, act of God, or force majeure event. Likewise, Rock Content is not responsible for defrauding the utility that End Users may have attributed to Our Platforms, nor for any difficulty in accessing it.

Rock Content Administrative Access. The Customer acknowledges that to facilitate efficient server management, inventory and related activities Rock Content servers may include a Rock Content administrative account and password, user event and page tracking code and/or any Rock Content monitoring or resource management systems or code. All reasonable precautions are made by Rock Content to maintain the security of these tools and the privacy of client data. The Customer will not tamper, hinder, delete or in any way change the functioning of these tools. General Rock Content cannot monitor or control all the activities of the Customers. Subject to its right to suspend or terminate use of its services or accounts by a Customer which has violated this Policy, Rock Content exercises no control over Customer content and does not actively screen or censor the activities or content of Customers. The Customer, not Rock Content, assumes all responsibility and liability relating to its Internet activities.

Termination. In the event of termination of the Agreement, you will lose access to your administrative console, as well as all the content, images and databases associated to your Administrative Console. Immediately after termination, We will not be responsible for the loss of any content.

Overages. You acknowledge that you are aware of your subscription “Visit” limits as stated in your Purchase Order or SOW and you will be subject to overages if these limits are reached during a billing cycle.

Privacy Disclosure. Customer agrees that Customer is responsible for notifying the individual end users accessing the publicly available portions of the Services (“Respondents”) about how Rock Content may use cookies and personal data on any interactive content created through the Services. Rock Content’s use of cookies and personal data is described in the Privacy Policy.

Rock Content’s customers (each a “Customer”) must exercise a high degree of judgment and responsibility with respect to their use of Rock Content’s services. If a Customer or any third-party affiliate of a Customer engages in any of the prohibited conduct identified below, this Policy will be deemed to be violated and Rock Content reserves the right to terminate its relationship with the Customer, including any Professional Services or Service Agreement then in effect with the Customer, or to take any other action provided by the relevant agreement. Upon detection or notification of an alleged violation of the Policy and prior to exercising any right of termination, Rock Content will initiate an immediate investigation into the violation. During the period of investigation, Rock Content services and/or outgoing publishing, content or syndication may be suspended from the offending user, Customer, or IP address(s) to prevent further violations. If a Customer is found, in Rock Content’s reasonable determination, to be in violation of this Policy, Rock Content may, at its discretion and without notice to the Customer, remove any or all content from an account, terminate or suspend the offending account and/or terminate or suspend any or all services under any Service Agreement then in effect with the Customer. No refunds or fees shall be repayable to the Customer in the event of such termination or during any period of suspension.

Services. We will provide the Services in accordance with the terms of the Agreement. You acknowledge that we may engage third parties to provide or enable elements of the Services, provided that we are responsible to you for the performance of such third parties as if we performed the Services ourselves. You shall use the Services solely for the intended purpose in accordance with the Agreement, including he AUP, and provide us with all information, assistance, and materials reasonably required for our ongoing provision of the Services. We will provide support to you through the standard means we make available to our customers (e.g. knowledge base, forums, chat, ticket).

Prohibited Conduct. The Customer may not use the Rock Content network or services in any way that adversely affects other Rock Content customers. This includes but is not limited to gaining or attempting to gain unauthorized access to servers or services. Such attempts include: “Internet scamming” (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, probing, monitoring or testing for system or network vulnerabilities; Exceeding or ignoring the TTL on any Rock Content service or feed; introducing Malicious Codeviruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancel bots, cross-site scripting, SQL injection or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; intentionally omitting, deleting, forging or misrepresenting transmission information, including headers, return addressing information and IP addresses; engaging in any of the foregoing activities using the service of another provider but channeling such activities through a Rock Content account. Please note: Unmoderated or poorly moderated chat or discussion interfaces and other resource intensive uses of Rock Content may not be suitable for Rock Content and can adversely affect the service of other customers. To avoid problems please consult with a Rock Content sales representative before using Rock Content for these types of uses. Adult related content including adult-oriented images, text and links ARE ONLY permitted on Rock Content with prior written permission from Rock Content. The Customer must not include content or have links to content that is unlawful, or which comprises, includes, teaches or promotes: defamatory, fraudulent or deceptive statements; threatening, intimidating, abusive or harassing statements; statements advocating injury or physical harm against any group or individual; content that violates the privacy rights or intellectual property rights of others; content that unlawfully promotes or incites hatred; content that is otherwise reasonably considered offensive or objectionable by the relevant web community; or any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any municipal, provincial, federal or international law, order or regulation. illegal activities content that exploits or depicts children in a negative/sexual way; content that infringes on copyright, patents, trademarks, trade secrets, or other intellectual property including pirated computer programs, cracker utilities, warez and software serial numbers or registration codes; content that violates any law, statute, ordinance or regulation governing the Customer’s business or activities, including without limitation the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, trade in firearms, privacy, data transfer and telecommunications.

Prohibited Activities. Without limitation, the Customer may not use (or allow anyone else to use) our Services to: use, possess, post, upload, transmit, disseminate or otherwise make available content that is unlawful or violates the copyright or other intellectual property rights of others (as described in more detail below); participate in any illegal soliciting or gaming schemes; attempt to use the Services in such a manner so as to avoid incurring charges for usage; participate in any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature. Customer assume all risks regarding the determination of whether material is in the public domain; invade another person’s privacy, collect or store personal data about other users, or stalk or harass another person or entity; access any computer, software, data or any confidential, copyright-protected or patent-protected material of any other person, without the knowledge and consent of that person, or use any tools designed to facilitate access, such as “packet sniffers”; upload, post, publish, deface, modify, transmit, reproduce, distribute in any way or otherwise make available information, software or other material protected by copyright or other proprietary or contractual right (such as a non-disclosure agreement) or related derivative works, without obtaining permission of the copyright owner or rightsholder; use, reproduce, distribute, sell, resell or otherwise exploit the Services or content we provide or which Customer obtain through the Services for any commercial purposes unless expressly authorized to do so by Rock Content; copy, distribute, sub-license or otherwise make available any software, service or content we provide or make available to Customer or which Customer obtain through the Services, except as authorized by Rock Content; restrict, inhibit or interfere with the ability of any person to access, use or enjoy the Internet, the Services or any Equipment used to connect to the Services, or create an unusually large burden on our networks, including, without limitation, posting, uploading, transmitting or otherwise making available information or software containing a virus, lock, key, bomb, worm, Trojan horse or other harmful, limiting, destructive or debilitating feature, distributing mass or unsolicited e-mail (“spam”) or other messages, or otherwise generating levels of traffic sufficient to impede others’ ability to send or retrieve information, or to use the Services in an abusive manner in connection with any unlimited packages, options or promotions; disrupt any backbone network nodes or network service, or otherwise restrict, inhibit, disrupt or impede our ability to monitor or deliver the Services, any transmissions or data; interfere with computer networking or telecommunications service to or from any Internet user, host, provider or network, including, without limitation, denying service attacks, overloading a service, improperly seizing or abusing operator privileges (“hacking”), or attempting to “crash” a host; use the Services for anything other than Customer own personal purposes (such as reselling the Services, providing Internet access or any other feature of the Services to any third party) or share or transfer Customer Services without our express consent; impersonate any person or entity, including, without limitation, a Rock Content official, forum leader, guide or host, or falsely state or otherwise misrepresent Customer affiliation with a person or entity; or forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services.

Hosting. Hosting will be provided with the conditions and terms according to the Order Form. A visit is an exclusive IP address registered in a day (UTC). The Customer assumes responsibility for its account’s security and its use and any content in the website of the Customer and shall not produce, provide, disclose, or transmit any content that: (i) violates any applicable laws, and/or moral, encourages any kind of violence, discrimination and/or prejudice of any nature; (ii) protected by any intellectual proprierties rights, belonging to Third Parties, without the Third Party prior written consent; (iii) Introduces malicious codevirus or other phisical or eletronic elements that may cause damage or prevent the regular operation of Rock Content network and international network, sistem, or Rock Content and Third Parties equipments (“hadrware” and “software”) or that may cause damage to equipments and files stored in these equipments; (iv)

Customer shall not introduce any hiperlink in the website that directs to unlawful or malicious content or in any way violates moral. Rock Content is not responsible for any hyperlink, provided by the Customer. Hosting has term stated in the applicable Order Form. In the event of termination, the Customer shall migrate the hosting to another server within thirty (30) days, otherwise, the access to the website and its contents will be lost. Rock Content will not be responsible for the loss of the blog and the content stored.

VISUALLY TERMS OF SERVICE

Platform & Services. Visually provides an online platform that includes membership opportunities, project workflow, collaboration, file management and other features (collectively, the “Platform”) to facilitate the provision of creative services (“Creative Services”) by connecting the Customer with service providers (“Vendors”). Visually also provides a set of services to (i) assist Customer in using the Platform (ii) scope Customer requirements for Creative Services; (ii) identify one or more appropriate Vendors to provide such Creative Services; and (iv) provide additional assistance to Customer in connection with the receipt of such Creative Services, as may be required by mutual agreement (collectively, the “Visually Services”). For avoidance of doubt, Visually does not provide nor is it obligated to provide Creative Services, as those are provided by the Vendors assigned to the Customer. While the Visually Services are intended to assist the Customer in procuring the desired Creative Services, the Customer assumes responsibility for working with the Vendors and providing the required feedback, input and adherence to agreed-upon duration for a successful project.

Ownership; Licenses Subject to Customer compliance with the Agreement, these Additional Terms and to payment of all outstanding Fees, Customer shall own all right, title and interest in and to all: 1) original or custom graphic design Deliverables; 2) original or custom video Deliverables, including vector artwork, pixel artwork, animation, and written copy; and 3) original or custom interactive Deliverables, including wireframes and design created for You, and Visually hereby makes all assignments necessary to effectuate the foregoing ownership. To the extent allowed by law, the foregoing assignment includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like. If for any reason the foregoing assignment is ineffective, Visually shall and hereby does grant Customer a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, sublicensable, transferable right and license to exploit and exercise the Deliverables for any purpose.

“Visually Background Materials” means, and, notwithstanding anything to the contrary, “Deliverables” shall not include, Visually’s proprietary or licensed software, tools, templates, methods, stock imagery and assets, code bases and libraries, as well as video sound deliverables, including music, voiceover, and sound effects, and know-how, pre-existing or otherwise, including (i) any of the foregoing which are generally applicable to Visually’s business, products or services, (ii) any derivatives, modifications, or improvements to the foregoing, and (iii) all intellectual property and proprietary rights embodied by or relating to the foregoing. If Visually incorporates any Visually Background Materials into any Deliverable provided to Customer hereunder, then Visually shall and hereby does grant Customer a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, sublicensable, transferable right and license to use such Visually Background Materials solely in connection with Customer use of such Deliverables. For broadcast usage specifically, if Customer displays their video Deliverables through the medium of broadcast television, additional fees may be incurred to cover the extended licensing of assets that are not produced in house by Visually. These include, but, are not limited to, stock photographs, logos, music, sound effects and voiceover. To remain legal and in compliance, the extended license for each of these aforementioned assets must be purchased and managed by Customer.

Customer hereby grant Visually a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, sublicensable, transferable right and license to copy, modify, publicly perform and publicly display the Deliverables on Visually’s website. General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, Visually shall not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another Customer.

Appropriate use of the Platform. Connecting the Customer with Vendors is an integral part of Visually’s model and maintaining a supply of Vendors is essential to Visually’s core business. Customer represents and warrants that it will not attempt to circumvent, or circumvent, any of the communication or payment methods provided by the Platform: this includes but is not limited to (i) submitting any proposals or soliciting any Vendors other than through the Platform; and (ii) paying any fees associated with the Creative Services other than to Visually as provided in this Agreement. During the term of this Agreement and for a period of three (3) years after, Customer represents and warrants it will not pay Vendors introduced to Customer outside the Visually Marketplace nor directly or indirectly solicit the Vendors to provide services outside the Visually Marketplace. Should Customer breach its warranty in this section, Customer will pay Visually a placement fee equal to the greater of (i) twenty-five percent (25%) of the Vendor’s equivalent estimated annual compensation or contract value, or (ii) $5,000.

You further represent and warrant the Platform will serve as the primary means of communication between Customer and Vendor regarding the Creative Services and Deliverables, which is essential to Visually’s ability to provide the Visually Services and assist the Customer in its usage of the Platform and the Vendor delivery of Creative Services.

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