This Subscription Agreement (“Agreement”) is made and entered into by and between mySidewalk, Inc., a Delaware corporation (“Company”), and the signor of this agreement (“Customer”). The parties hereby agree as follows:
SUBSCRIPTION. Company hereby grants a subscription to, and Customer hereby subscribes to, Company’s “Reports” solution (the “Solution,”) solely for use in creating and sharing custom data reports. The subscription granted does not give Customer the right to rent, lease, or provide access to the Solution on a time-share or service bureau basis.
DATA. Customer acknowledges that a Report will contain raw or customized data that is maintained by Company and does not include any of Customer’s data (the “Solution Data”), as well as (in some instances) data that Customer has provided to Company (the “Customer Data”). Customer further acknowledges that it has no ownership rights in the Solution Data, and that Company owns all right, title and interest in and to the Solution, as such may be modified from time to time. Company hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license to use, reproduce and share the Solution Data in the form contained in the Reports. Customer represents and warrants that it has all rights, consents, and authority necessary for Customer’s collection, use and processing of the Customer Data. Customer acknowledges that Company will not monitor or police Customer’s use or sharing of the Reports, and Company will not be responsible or liable for such use or sharing. Customer shall comply with all applicable laws, rules and regulations in exercising its rights and performing its obligations under this Agreement.
CUSTOMER OBLIGATIONS. Customer shall, upon request by Company: (i) permit Company to issue a press release highlighting Customer’s purchase or use of the Solution; (ii) participate in targeted press and analyst interviews highlighting the benefits of the Solution; and/or (iii) participate in customer case studies developed and published by, or on behalf of, Company. Customer grants Company a non-exclusive right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in Company’s marketing materials, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to Company. Customer’s use of the Solution is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Solution. Company shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
CONFIDENTIALITY. Each party may have access to the other party’s Confidential Information. “Confidential Information” means, without limitation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Solution. Neither party shall disclose the other party’s Confidential Information except to such party’s advisors, representatives, attorneys, investors (and prospective investors), and prospective acquirers (collectively “Representatives”) as have a reasonable need to know such information. Confidential Information of a party shall not include information that: (a) is or becomes publicly available through no act or omission of the other (receiving) party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence. Except to the extent expressly provided for in this Agreement, during the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party will be responsible to the other for any breach of this Section 3 by its employees or Representatives. Confidential Information of a party may be disclosed by the other party as required by any governmental agency or authority, provided that before disclosing such information the party required to disclose same must provide the other party with sufficient advance notice of the agency’s or authority’s request to enable the non-disclosing party to attempt to limit such disclosure.
WARRANTY DISCLAIMER. THE SOLUTION AND THE REPORTS ARE PROVIDED “AS IS.” COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOLUTION OR THE REPORTS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SOLUTION OR THE REPORTS WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
- TERM AND TERMINATION. This Agreement shall commence on the Effective Date and shall continue for the period as defined by the customer contract (the “Term”), unless terminated earlier as provided in this Agreement. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days. Subject to Title 11 of the United States Code, if Customer becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then Company may terminate this Agreement upon thirty (30) days’ written notice. Upon expiration or termination of this Agreement, each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. The rights and obligations of Company and Customer contained in Section 2(a) (pertaining to ownership), 4 (Confidentiality), 5 (Warranty Disclaimer), 6 (pertaining to post-termination rights and obligations), 7 (Survival), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General) shall survive any expiration or termination of this Agreement, to the extent applicable.
- INDEMNIFICATION. Each party shall defend (or settle), indemnify and hold harmless the other party, its officers, directors and employees, from and against any third-party claims, including court costs and reasonable attorneys’ fees, arising out of or in connection with any breach by the indemnifying party of this Agreement. The indemnifying party’s obligations are contingent upon: (i) the other party providing it with prompt written notice of such claim; (ii) the other party providing reasonable cooperation, at the indemnifying party’s expense, in the defense and settlement of such claim; and (iii) its having sole authority to defend or settle such claim; provided, however, that no settlement or compromise that (y) imposes any liability or obligation on the indemnified party, or (z) does not contain an unconditional written release of the indemnified party from all liability in respect of the claim (in form and substance reasonably satisfactory to the indemnified party), shall be made without the indemnified party’s prior written consent.
- LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 1 or 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR COST OF SUBSTITUTE SERVICES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL MONTHLY FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PROCEEDING THE DATE ON WHICH SUCH AGGREGATE LIABILITY IS CALCULATED, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
- GENERAL. This Agreement shall be governed by the laws of the State of Nebraska, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Douglas County, Nebraska. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth below or delivered in person. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
If to Company:
304 W 8th St.
Kansas City, MO 64105
Attention: Stephen Hardy
Telephone No.: 816.256.2002
Email: [email protected]
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. This Agreement, together with the exhibits attached hereto, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
- FORCE MAJEURE. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
- ASSIGNMENT/SUCCESSORS. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except that Company may assign or transfer this Agreement in connection with a Change of Control of Company (as defined below) without consent. “Change of Control” means, with respect to Company: (a) the direct or indirect acquisition of either (i) the majority of voting equity interests of Company or (ii) all or substantially all of the assets of Company, by another entity in a single transaction or a series of transactions; or (b) the merger of Company with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
- EQUITABLE RELIEF. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
- COUNTERPARTS. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.