Wondersign Content License Agreement
This Content License Agreement (“Agreement”), effective as of the first date that you, the “Customer” engage the services (the
“Effective Date”), is by and between Apexis Inc., a Florida corporation, d/b/a Wondersign (“Licensor”), and you (“Licensee”).
WHEREAS, Licensee has an agreement with various data vendor partners (the “Vendor Partners”), pursuant to which Licensee
has rights to certain data from the Vendor Partners regarding the Vendor Partners’ products and pricing (the “Vendor Partner Data”);
WHEREAS, Licensor periodically makes certain modifications, changes and updates to the Vendor Partner Data (such
modifications, changes and updates are referred to herein as the “Licensed Content”); and
WHEREAS, Licensee wishes to make Licensed Content accessible on the Licensee Site to End Users, and in Licensee Stores
solely for internal use, and Licensor is willing to license the Licensed Content to Licensee, subject to the restrictions and terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions.
For purposes of this Agreement, the following terms have the following meanings:
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Effective Date” has the meaning set forth in the preamble.
“End User” means each natural person that has access to Licensed Content on the Licensee Site and is a customer or potential customer of Licensee.
“Licensed Content” means the Vendor Partners product data feed based on data provided by the Vendor Partners, enhanced with additional information curated by Licensor, which may be amended by the parties as set forth herein.
“Licensee” has the meaning set forth in the preamble.
“Licensee Site” means a website owned, operated and controlled by Licensee
“Licensee Store” means any storefronts owned, operated and controlled by Licensee
“Licensor” has the meaning set forth in the preamble.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority,
unincorporated organization, trust, association or other entity.
“Term” initial term of service, pursuant to Wondersign Agreement.
“Terms of Use” has the meaning set forth in Section 5.3.
2. Delivery of Content.
On the Effective Date, Licensor shall deliver to Licensee the Licensed Content, in accordance with the service plan the Licensee has purchased. During the Term, upon Licensee’s request, Licensor shall deliver to Licensee the Licensed Content, as it may be updated from time to time. Licensor is not liable for delays or failures of delivery beyond its reasonable control. Licensor’s sole responsibility for any such delay or failure is to deliver or re-deliver the relevant Licensed Content as soon as reasonably possible.
3. License Grants.
3.1 Content License. Subject to Section 3.2 and all other terms and conditions of this Agreement, Licensor grants to Licensee a non- exclusive, non-transferable and non-sublicensable license, during the Term, to reproduce, display, transmit and distribute the Licensed Content: (a) on the Licensee Site solely to End Users, and (b) in the Licensee Store solely on its own computers and terminals. The foregoing Section 3.1(a) includes the right to permit End Users to access the Licensed Content solely for their own non-commercial personal end use and not for redistribution and otherwise subject to Terms of Use that comply with Section 5.3. Licensee is not granted any right to, and shall not, permit any other use of the Licensed Content by End Users, or any other use of the Licensed Content by any other Person (including Licensee’s Affiliates).
3.2 Content License Restrictions. The license granted in Section 3.1 is subject to the following:
(a) Licensee shall not include Licensed Content on the Licensee Site or in the Licensee Store other than as expressly
permitted herein and in accordance with all terms and conditions of Section 4.
(b) Licensor shall not permit any use of the Licensed Content by any Person (including Licensee’s Affiliates), other than as expressly provided in Section 3.1 with respect to End Users.
(c) Licensee shall not permit the Licensed Content to be, or appear to be, reproduced, displayed or distributed on, as part of or in connection with any website or other online (including mobile) area other than the Licensee Site, whether by framing, in-line linking,
appearing in a new window or otherwise.
(d) If Licensor instructs Licensee to delete or make inaccessible any part of the Licensed Content because such part may contain errors, is or could be subject to a third-party claim or for any other good faith reason, Licensee shall comply with such instruction as
promptly as reasonably possible and, in any case, within twenty-four (24) hours.
(e) Licensee shall not access or use the Licensed Content for purposes of: (i) benchmarking or competitive analysis of such
Licensed Content; or (ii) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Licensed Content.
(f) Licensee shall not market, distribute, license or otherwise make available in stand-alone, bundled or any other form, any
products or services, or any product or service components, that can or do compete with the Licensed Content. All uses of the Licensed Content that do not comply fully with the provisions of this Section 3.2 shall for all purposes be deemed
beyond the scope of the license granted hereunder. Any violation of this Section 3.2 by Licensee shall be a material breach of this
Agreement that is incapable of cure, and, in the event of any such violation, Licensor may, in addition to and not in lieu of all other remedies, immediately terminate this Agreement.
4. Third-Party Materials.
All Vendor Partner Data is owned by the Vendor Partners, and is provided to Licensee pursuant to the terms and conditions of any applicable agreements between Licensee and the Vendor Partners. Licensor provides no representations, warranties or support with respect to Vendor Partner Data, and is not responsible for their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof, as further described in Section 7 below. Licensee hereby represents and warrants to Licensor that Licensee has all rights to Vendor Partner Data necessary to use the Licensed Content as permitted
hereunder.
5. Licensee Obligations.
5.1 Content Display. Throughout the Term, Licensee shall have the right, but not the obligation, to provide the Licensed Content on
the Licensee Site and in the Licensee Store solely to the extent of and within the scope of the license granted in this Agreement and otherwise in accordance with the following:
(a) Licensee shall update Licensed Content on the Licensee Site and in the Licensee Store promptly upon receipt from the
Licensor.
(b) Licensee shall remove the Licensed Content from the Licensee Site and the Licensee Store immediately upon the
expiration or earlier termination of the Term.
5.2 Required Notices. Licensee shall display with the Licensed Content the appropriate copyright and trademark notices and any other source attribution required by Licensor, each as specified and in accordance with instructions from the Licensor. Licensee shall not alter, remove or obstruct any such notices or attribution included with the Licensed Content as delivered by Licensor.
5.3 Terms of Use. Throughout the Term, Licensee shall have in effect and maintain accessible on the Licensee Site website terms of
use (“Terms of Use”) on which use of the Licensee Site, including the Licensed Content, is expressly conditioned, and which in form and substance are reasonably acceptable to Licensor.
5.4 User Complaints. Throughout the Term, if Licensee receives any notice claiming that the Licensed Content infringes or otherwise
violates any intellectual property or other third-party right, Licensee shall:
(a) immediately notify Licensor in writing, including such detail as is available and necessary for Licensor to evaluate and address such complaint; and
(b) fully cooperate with Licensor in addressing such claims.
6. Termination.
6.1 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:
(a) All licenses granted under this Agreement shall also terminate, and Licensee shall immediately delete from its systems and servers all Licensed Content and any other materials provided by Licensor. Upon Licensor’s written request, Licensee shall promptly provide Licensor with written certification of such deletion.
(b) Licensee shall promptly pay all unpaid License Fees that relate to the period prior to the effective date of expiration or
termination.
6.2 Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 6.1, this Section 6.2, Section 7, Section 8, and Section 9.
7. DISCLAIMER.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT. FURTHERMORE, LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY VENDOR PARTNER DATA. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OR COMPLETENESS OF VENDOR PARTNER DATA, AND LICENSOR SHALL NOT BE LIABLE FOR ANY DELAYS, INACCURACIES, INTERRUPTIONS OR UNAVAILABILITY, ERRORS, OR OMISSION OF ANY VENDOR PARTNER DATA, ANY ACTIONS TAKEN IN RELIANCE THEREON OR FOR ANY DAMAGES ARISING THEREFROM OR OCCASIONED THEREBY.
8. LIMITATIONS OF LIABILITY.
8.1 No Consequential or Indirect Damages. LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS
AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL OR EXEMPLARY DAMAGES OR
PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS,
REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
8.2 Cap on Monetary Damages. LICENSOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Miscellaneous.
9.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
9.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties as follows (or as otherwise specified by a party in a notice given in accordance with this Section):
If to Licensor:
Apexis, Inc. dba Wondersign
9450 SW Gemini Dr #91247
Beaverton, OR 97008
E-mail: legal@wondersign.com
Attention: General Counsel
If to Licensee:
To the address pursuant to the quote noted in page one of this document.
Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date
sent by facsimile or e-mail (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient or (d) on the fifth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
9.3 Entire Agreement. This Agreement, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
9.4 Assignment. This Agreement is personal to Licensee. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 9.4 is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
9.5 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and
permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
9.6 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and executed by Wondersign. Wondersign may amend or modify this Agreement without prior notice. You will be notified by email of any such changes. You are responsible for ensuring at all times that your contact information, including email address(es), on record with
Wondersign is correct. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
9.7 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
9.8 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
9.9 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
9.10 Jury Trial Waiver. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
9.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which
together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.