This Services Agreement and the Order Form (together, this “Agreement”) is entered into as the Effective Date by and between EPOM, Address: Epom Ltd, Nancy Whiticker House, 7 Old Street, Roseau, Commonwealth of Dominica and Company. WHEREAS, EPOM is a technology infrastructure company that offers hosted ad serving solutions to publishers and has developed a proprietary, patent-pending ad serving application (the “Software”, as further defined in Exhibit A) and offers training, maintenance and technical support (the “Support”, as further defined in Exhibit A); and WHEREAS, Company desires to obtain (i) the right to access and use the Software and (ii) such Support subject to the terms and conditions set forth herein and EPOM desires to provide such Software and Support on such terms. NOW, THEREFORE, for good and valuable consideration as further set forth herein, EPOM and Company (each a “Party” and collectively the “Parties”) agree as follows:1. DEFINITIONS.
Unless otherwise defined herein, capitalized terms shall have the meanings assigned to such terms set forth in Exhibit A.2. SOFTWARE IMPLEMENTATION & ACCEPTANCE.
The Software shall be implemented by EPOM and accepted by Company as set forth below:
(a) Implementation. Immediately following the Effective Date, EPOM shall implement the Software for Company in accordance with Exhibit B attached hereto. EPOM's implementation shall be performed in a workmanlike manner consistent with industry standards and in accordance with EPOM’s standard services methods, including but not limited to, requirement analysis, system configuration and training.
(b) Acceptance. Company shall be deemed to have accepted the Software upon the Effective Date.3. SUPPORT.
EPOM will offer Support with respect to access to and use of the Software, via EPOM’s Servers, in accordance with the terms set forth on Exhibit C.4. GRANT OF RIGHTS.
(a) Access. Subject to the terms and conditions of this Agreement, EPOM hereby grants Company a nonexclusive, nonassignable and nontransferable right to remotely access EPOM’s Servers and the Software solely for the purpose of using the Software in accordance with Section 4(b) below. Company acknowledges and agrees that such access excludes periods of scheduled and unscheduled maintenance. Company acknowledges that EPOM makes commercially reasonable efforts to ensure Ad Serving uptime of twenty four hours per day without periods of scheduled maintenance and that EPOM makes commercially reasonable efforts to ensure that the Trafficking and Reporting interface is available for use twenty four hours per day, except for periods of scheduled maintenance and occasional unscheduled maintenance.
(b) Software. Subject to the terms and conditions of this Agreement, EPOM grants Company a nonexclusive, no assignable and nontransferable right to use the Software, including any Updates only as hosted on EPOM’s Server and solely for Company’s own internal use. Company may permit Users authorized under this Agreement to use the Software for so long as each such User remains an employee or consultant of Company or subsidiary as defined in Section 4(c).
(c) Restrictions. The rights granted herein are limited solely to Company and its permitted Users. In the event a permitted User under this Agreement is an employee or consultant of an Affiliate of Company, Company shall: (i) ensure that such employee or consultant complies with the terms of this Agreement and (ii) be directly liable to EPOM for each such Affiliate employee's or consultant's access to and use of the Software. Company shall not: (i) attempt to make any copies of the Software; (ii) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software, modify, adapt, create derivative works based upon, or translate the Software; (iii) copy, install or use (except as provided in Section 4(b) above) the Software on any of its computer systems, servers, or networks; or (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Software in any form to any third party, including commercial time-sharing, rental, or service bureau use.
(i) Software: This Agreement does not constitute a sale and does not convey any rights of ownership in or to the Software. EPOM is not granting Company any rights whatsoever in the Software source code. All right, title, and interest in the Software and any development efforts, updates, upgrades or modifications thereof, or in any ideas, know-how and programs developed by EPOM or its licensors during the course of this Agreement will remain the property of EPOM or its licensors.
(ii) Account Data: As between EPOM and Company, Company shall own the usage information and traffic patterns specific to use of the Software, (the "Account Data"). Notwithstanding the foregoing, EPOM shall have the right to use such Account Data as reasonably necessary to perform its obligations under this Agreement and to improve its services. In addition, EPOM shall have the right to collect, use and distribute Account Data in the aggregate (aggregate of Account Data of many EPOM customers) so long as any aggregated data provided to any third party does not allow any third party to determine or identify any Account Data specific to Company. Examples of such aggregate data include the % of ads served that are Flash Ads or the % of ads served that are served to Firefox browsers.5. COMPANY RESPONSIBILITIES.
(a) Prohibited activities: Company may not use Epom ad tags to deliver ads on websites, mobile sites or applications that:
(b) Data Back-Up: Company agrees that it is responsible for establishment and maintenance of back-up plans to protect against the possibility of loss of data or other information of Company uploaded to the Software.
(c) Accuracy: Company agrees that it is solely responsible for implementing sufficient procedures and checkpoints to satisfy any requirements it may have regarding the accuracy of any input or output of the Software.
(d) Access Security: Company shall implement security measures understood in the industry to provide adequate protection against unauthorized access to, or use of the Software and shall be liable for any unauthorized access thereto that results from breach of Company security processes until Company notifies EPOM thereof.
(i) Exclusive Ad Server: Company shall use EPOM as its Exclusive ad server for the Term and any Renewal Terms. Exclusive Ad Server in this context means that EPOM ad tags will be the only ad server tag (or ad network tag or ad network optimization tag) on or inserted into Company's web page or flash page or application when that page/application is served to a browser or a PC.6. PAYMENT OBLIGATIONS.
(i) Initial Term. In consideration of the rights granted hereunder, Company shall pay EPOM the fees in the amount and as set forth in The Order Form.
(ii) Renewal Term. Sixty (60) days prior to the expiration of the Initial Term and Renewal Term, EPOM will provide Company with written notification setting forth any changes to fees to be charged under this Agreement upon commencement of the Renewal Term, if there are any changes to fees.
(b) Payment. Fees due by Company under this Agreement shall not be subject to any right of set off for any claims against EPOM. Charges will be invoiced at the end of each month and payments shall be made within thirty (30) days of date of invoice. All invoices shall be sent to Company at the address set forth in Section 14(e)(ii), or at Company’s option, directly withdrawn from a designated Company bank account.
(c) Taxes. Company shall calculate and pay all taxes, duties or charges of any kind (including withholding or value added taxes) imposed by any federal, state or local governmental entity for products or services provided under this Agreement, excluding only taxes based solely on EPOM’s income. Company shall defend, save and hold harmless EPOM from all claims and liability arising from Company’s failure to support or pay any such taxes, including any duties, fees or charges.
(d) U.S. Dollars. All fees quoted and payments made hereunder shall be in U.S. Dollars.7. MARKETING.
Company agrees that EPOM may use Company’s name in EPOM’s press releases, product brochures and other marketing materials, financial reports and prospectuses, indicating that Company is a user of the Software and a customer of EPOM. EPOM may use Company’s name or logo and may include quotes or statements made by Company regarding its use of the Software in any of the materials set forth in this Section 7 with the prior written consent of Company, such consent not to be unreasonably withheld or delayed.8. TERM, TERMINATION AND SURVIVAL.
(a) Term. The Initial Term (the “Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for the period defined on the Order Form. If no Initial Term is defined then the Initial Term will be thirty six (36) months. This Agreement will automatically renew for periods of 24 months each (the “Renewal Term”) upon terms presented in Section 6(a)(ii) unless either Party provides written notice to the other Party, at least sixty (60) days prior to the termination of the Initial Term or subsequent Renewal Terms of its intent not to renew this Agreement.
(b) Termination for Cause. Either Party may terminate this Agreement on written notice if the other Party has breached any material term or condition of this Agreement and such breaching Party has failed to cure such breach within thirty (30) days of receipt of notice of such breach by the non-breaching Party. Notwithstanding the foregoing EPOM may suspend the rights granted hereunder and/or the performance of Support upon fifteen (15) days written notice to Company if Company fails to make any payment due hereunder as set forth in Section 6. Either Party may further terminate this Agreement in accordance with Section 14(f).
(c) Removal. Company will remove all tags within 15 days of termination of contract. If Company does not remove ad tags within 15 days, to cover costs, EPOM will serve third party ads to remaining ad tags without payment to Company.
(d) Survival. The provisions of this Section 8(c) and Sections 4(c), 4(d), 9, 11, 12, 13 and 14(b) shall survive any termination or expiration of this Agreement.9. CONFIDENTIAL INFORMATION.
(a) Non-use and Nondisclosure. Each Party agrees that it will not use or disclose any Confidential Information received from the other Party other than as expressly permitted under this Agreement or as expressly authorized in writing by the disclosing Party. The receiving Party shall use the same degree of care to protect Confidential Information of the other Party as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care. Company agrees that it will require every employee or consultant who will have access to, use of, or knowledge of the Software to execute (in advance of and as a condition to such access, use of or knowledge) a confidentiality agreement including terms substantially similar to those contained in this Section 9.
(b) Mandatory Disclosures. Notwithstanding Section 9(a) above, nothing in this Section 9 will prevent either Party from disclosing Confidential Information of the other to the extent required by law, judicial order or other legal obligations, provided that in such an event, the Party disclosing such Confidential Information of the other shall notify such Party to allow such Party to seek a protective order or other appropriate relief. If a protective order is not obtained, the Party required to make such disclosure shall disclose only that portion of the Confidential Information which its counsel, in its reasonable judgment, advises is legally required to disclose.
(c) Authorized Disclosure. Notwithstanding the provisions of this Section 9, each Party may disclose the terms of this Agreement (i) in connection with the requirements of an initial public offering or securities filing; (ii) in confidence, to accountants, banks and financing sources and their advisors; (iii) in confidence in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition or the like.
(d) Return of Confidential Information. Upon non-renewal or earlier termination of this Agreement, each Party shall promptly, but in no event more than thirty (30) days thereafter, return to the other Party all Confidential Information of such Party which is in tangible form, or certify in writing that all such Confidential Information has been destroyed. EPOM acknowledges and agrees that (i) all Account Data will be returned to Company in standard EPOM export format (ii) all Account Data shall be erased from the Software and (ii) it shall certify to Company in writing within thirty (30) days of non-renewal or earlier termination that all Account Data have been erased.
(e) Remedies. Both Parties agree that the obligations of each Party provided in this Section 9 are necessary and reasonable in order to protect each Party and its business, and each Party expressly agrees that monetary damages would be inadequate to compensate either Party for any breach by the other Party of its covenants and agreements set forth herein. Accordingly, both Parties acknowledge and agree that any such violation or threatened violation will cause irreparable injury to the other Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, both Parties shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the other Party, without the necessity of proving actual damages.10. REPRESENTATIONS & WARRANTIES.
(a) EPOM. EPOM represents and warrants that it has the necessary corporate right, power and authority to enter into this Agreement and to grant Company the rights set forth herein with regard to the access and use of the Software and Services.
(b) Company. Company represents and warrants that Company's services, products, materials, data, and information used by Company in connection with this Agreement as well as Company’s and Users' use of the Software does not and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation. In furtherance of the foregoing, Company hereby represents and warrants that (i) it has, or will have, entered into written agreements granting Company all necessary licenses, rights and other similar consents (a) with each Publisher for the display of advertisements in each such Publisher's Ad Space, (b) with each Advertiser for placement of each such Advertiser's advertisement in each Publisher's Ad Space, and (c) with respect to any other data, content, or materials used by Company, in each case prior to use of the Software in connection therewith, and (ii) that Company's activities pursuant to subsection (i) above will comply with all applicable laws and will not infringe the trademark, copyright, trade secret, privacy, publicity, or other rights of any third party.
(c) Breach of Warranties. In the event of any breach, or reasonably anticipated breach, of any of Company’s warranties herein, in addition to any other remedies available at law or in equity, EPOM will have the right to immediately, in EPOM's sole discretion, suspend Company's access to and use of the Software or Services if deemed reasonably necessary by EPOM to prevent any liability for EPOM.11. INDEMNIFICATION.
(a) EPOM. EPOM shall defend and or settle at its sole expense, any claim brought by a third party against Company that the Software when accessed and used in accordance with this Agreement, infringes any patent or copyright or trade secret of any third party and shall pay any damages finally awarded or settlements entered into to the extent based upon such a claim; provided that Company promptly notifies EPOM, but in no event more than twenty (20) days, thereof in writing of any such claim; promptly tenders sole control of the defense and settlement of any such claim to EPOM and shall provide EPOM with all information and cooperation at EPOM’s expense (excluding the value of the time of Company’s employees) reasonably required in defending or settling such claim and Company may join in defense with counsel of its choice at its sole expense. If the Software is, or in the sole discretion of EPOM may become, the subject of any claim of infringement or if it is adjudicatively determined that the Software infringes, EPOM may, in its sole discretion and expense, either (i) procure for Company the right from such third party to permit access to or use of the Software, (ii) replace or modify access to or use of the Software in order that such access to and use of the Software becomes no infringing or (iii) if the options described under subsection (i) and (ii) of this Section 11(a) are not in EPOM’s judgment practicable, terminate this Agreement effective upon written notice to Company.
(b) Exceptions to EPOM’s Obligation. EPOM’s obligations pursuant to Section 11(a) above shall not apply to the extent such infringement arises as a result of (i) modifications to the Software made other than by EPOM or EPOM’s authorized representatives, or (ii) the combination or use of the Software with materials not furnished by EPOM. THIS SECTION 11 STATES EPOM’S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
(c) Company. Except with respect to claims for which EPOM is obligated to indemnify Company under Section 11(a), Company shall indemnify, defend and hold harmless EPOM from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by EPOM arising out of any third party claim related to any alleged or actual breach by Company of the representations and warranties set forth in Section 11(b) above and (ii) Company’s access to or use of the Software; provided that EPOM promptly notifies Company, but in no event more than twenty (20) days, thereof in writing of any such claim and promptly tenders the control and the defense and settlement of any such claim to Company and shall provide Company with all information and cooperation at Company’s expense (excluding the value of the time of EPOM’s employees) in defending or settling such claim and EPOM may join in the defense with counsel of its choice at its sole expense.12. LIMITATION OF LIABILITY.
IN NO EVENT WILL EPOM’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE SUM OF THE FEES ACTUALLY PAID BY COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO EPOM'S LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF DATA, LOST PROFITS, COST OF COVER, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM ACCESS TO OR USE OF THE SOFTWARE OR ANY ACCOMPANYING MATERIALS, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ON ANY OTHER THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 12 SHALL NOT APPLY TO ANY BREACH BY COMPANY OF THE LICENSE RESTRICTIONS OR TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 OR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11. THE PARTIES AGREE THAT THIS SECTION 12 REPRESENTS A REASONABLE ALLOCATION OF RISK.13. WARRANTY EXCLUSIONS.
(a) Warranty Exclusion. EXCEPT AS SET FORTH IN SECTION 10(a) ABOVE, (I) EPOM DOES NOT WARRANT THAT EPOM’S SERVERS, ACCESS TO OR USE OF THE SOFTWARE OR THE SUPPORT PROVIDED WILL MEET COMPANY'S REQUIREMENTS OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR FREE, (II) EPOM’S SERVERS, ACCESS TO AND USE OF THE SOFTWARE, THE SUPPORT AND ANY ACCOMPANYING MATERIALS ARE PROVIDED “AS IS” AND (III) EPOM MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO EPOM’S SERVERS, ACCESS TO OR USE OF THE SOFTWARE OR SUPPORT OR ANY ACCOMPANYING MATERIALS PROVIDED AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.14. MISCELLANEOUS.
(a) Independent Contractors. The Parties hereto are independent contractors and no agency, joint venture, partnership, employer-employee, or franchise-franchisee relationship is intended or created by this Agreement.
(b) Governing Law. This Agreement will be governed by the laws of the State of California, excluding its application of choice of law principals. Both Parties submit to the exclusive venue and jurisdiction of the United States District Court for the Northern District of California and the Superior Court of California in San Mateo County for any action or dispute related to or arising out of this Agreement.
(c) Severability; Headings. If any provision of this Agreement is held to be unenforceable or invalid for any reason, the remaining provisions will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives. All headings are for reference purpose only and in no way define, limit, or construe the scope or extent of the corresponding section.
(d) Assignment. Neither party may assign, or otherwise transfer, its rights or delegate any of its duties or obligations under this Agreement, by operation of law or otherwise (collectively, an “Assignment”), without the prior written consent of the other party, except on the occurrence of a Change of Control Event. For purposes of this Section 14 (d), a change in the persons or entities who control fifty percent (50%) or more of the equity securities or voting interest of Company shall be considered a Change of Control Event. Any attempted Assignment in violation of this Section shall be null and void and of no effect. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the Parties.
(i) Delivery. Except as otherwise provided in this Agreement, all invoices, reports, consents, approvals or other communications required or permitted to be delivered hereunder, shall be in writing, signed by the issuing Party, and must be (1) delivered in person, (2) sent postage prepaid by first class registered mail or air mail, as appropriate, or (3) sent by a secure, overnight air courier service, in each case at the address set forth in subsection (e)(ii) below. Receipt will be deemed effective upon actual delivery in person, three (3) business days after deposit in the mail or one (1) day after delivery to an overnight courier service.
(ii) Addresses. Except as each Party may designate to the other from time to time in writing, all communications set forth in subsection (e)(i) above shall be sent to the Parties at the addresses on the Order Form.
(f) Force Majeure. If performance of any obligation hereunder (other than payment, confidentiality or indemnity obligations) is interfered with by any condition beyond a Party’s reasonable control (including but not limited to acts of God, fire, or telecommunications systems breakdown), the affected Party shall be excused from performance of such obligation to the extent of such condition. If any such condition continues to prevent or delay performance for more than ninety (90) days, the affected Party may terminate this Agreement, in whole or in part, effective immediately upon written notice to the other Party.
(g) Non-solicitation. Both Parties agree that, during the period of this agreement, they will not directly or indirectly solicit or in any manner encourage employees or consultants of the other Party to end their relationships with either Party.
(h) Entire Agreement; Waiver; Counterparts. This Agreement, including any exhibits hereto, constitutes the entire agreement between the Parties relating to the subject matter hereof and supercedes all prior oral or written communications or understandings related thereto. Except as provided in Section 14(c) above, no provision of this Agreement may be amended or waived unless agreed to in writing by the Parties or by the Party granting such waiver. No failure or delay of either Party to exercise all or any part of any right or remedy hereunder will operate as a waiver of such right or remedy or portion thereof. This Agreement may be executed in counterparts, all of which taken together shall constitute one agreement between the Parties.15. SPYWARE.
(a) Company may not use EPOM ad tags in any application that has been downloaded to users desktops without their permission. Company may not use EPOM ad tags to deliver/download any applications to the user's desktop without their explicit permission.
(b) Company may not serve Ads using EPOM through any software, including Flash which does any of the following without end user’s explicit authorization: takes control of the end user’s computer to send unsolicited information, Diverts or redirects end user’s browser, Modifies computer settings for default internet access providers, search providers, bookmarks, security settings or web page display, Renders security settings, security software or anti-spyware programs inoperable, Induces or deceives a user to provide Personally Identifiable Information, Cannot be uninstalled or removed by standard and normal practices.
(c) Company may not use EPOM ad tags in any application/site that contain content explicitly related to child pornography.
(d) If EPOM believes that Company is serving an ad that improperly contains spyware or malware, EPOM may at its sole discretion, reply to third party inquiries and disclose Company name and contact details to third party.
(e) Penalties and Probation: Any one of the preceding instances that occurs through your site or application, your publisher’s sites or applications, or your advertisers, will count as a single violation or our Anti-Spyware clause. Each instance will cause automatic shutoff and you will be notified later. Notifications will be sent to the Emergency Contact or Primary Contact as listed on the Order Form. Each instance will result in a $1,000 non-refundable fine added to your next monthly invoice and will be recorded in your company history on file with EPOM. EPOM will reserve the right to take additional action with multiple infractions such as barring that advertiser/publisher or shutting down your account.Exhibit A
Unless otherwise defined herein, capitalized terms shall have the respective meanings assigned to such terms as set forth below:
SETUP AND TRAINING
EPOM will provide the following services to the Company:
The Company will be solely responsible for soliciting all Advertisers and handling all Advertiser inquiries of any type or nature. Company may purchase further training sessions for a fee of $250 per hour. Company will pay Travel and Expenses for on-site training sessions requested.Exhibit C
SUPPORT and SERVICE LEVEL AGREEMENT