Section 1. Reseller License
1.1 Grant. Subject to the terms and conditions of this Agreement, Mixpo hereby grants to Reseller a nontransferable, nonexclusive license to do the following during the Term: (a) promote and market the VideoAd Services and VideoAd Products to Advertisers and potential Advertisers; (b) procure orders from Advertisers for VideoAd Products for processing and fulfillment by Reseller or Mixpo; (c) install and use the VideoAd Player on servers hosting websites within the Reseller Network solely in connection with the display of VideoAd Products within the Reseller Network; (d) distribute, install, and display the VideoAd Products delivered by Mixpo under this Agreement within the Reseller Network; (e) access and use the VideoAd Services (including, without limitation, the Dashboard and its VideoAd Product creation tools) via a secure online password furnished by Mixpo; (f) provide technical support, maintenance, and training to Advertisers for use of the VideoAd Products; and (g) use the Mixpo Marks to promote and identify the VideoAd Services and VideoAd Products.
1.2 Limitations on Use. Section 1.1 above sets forth the entirety of Reseller’s rights to use, market, promote, distribute, and otherwise deal with the VideoAd Services and VideoAd Products. Without limiting the foregoing, Reseller will not, directly or through others: (a) market, promote, license, distribute, transfer, or otherwise commercially exploit any of the VideoAd Services or any VideoAd Products except as expressly authorized in Section 1.1; (b) copy any portion of the VideoAd Services; (c) use the VideoAd Services or VideoAd Products in connection with any website outside the Reseller Network; (d) modify any portion of the VideoAd Services; (e) disassemble, reverse engineer, or decompile any portion of the VideoAd Services, or prepare derivative works from the VideoAd Services, or attempt to discover any portion of the source code or trade secrets related to the VideoAd Services; or (f) remove, obscure, or alter any copyright, trademark or other Proprietary Right notice appearing in or on the VideoAd Services.
1.3 Use of the Mixpo Marks. Reseller may use the Mixpo Marks in advertising, promotional literature, documentation, and other marketing materials related to the VideoAd Services. Reseller will comply with the trademark guidelines established by Mixpo in Reseller’s use of the Mixpo Marks. Reseller will not adopt brands, logos, trademarks, trade name, or other marks which are the same as or confusingly similar to the Mixpo Marks. Reseller’s use of the Mixpo Marks in any advertisement, promotional display, or other marketing materials will be subject to Mixpo’s prior review and written (electronic mail sufficient) approval. Reseller will furnish to Mixpo an advance copy of any advertisements, promotional displays, or other marketing materials using the Mixpo Marks.
1.4 Marketing Services. Reseller will be responsible for all marketing, sales, and packaging of the VideoAd Products for Advertisers and will use reasonable efforts to market and promote the VideoAd Services and VideoAd Products during the Term.
1.5 No Unauthorized Warranties. Reseller will not make or extend on behalf of Mixpo any written or oral warranty with respect to the VideoAd Services or the VideoAd Products. Reseller will defend, indemnify, and hold harmless Mixpo from any claims, damages, liability, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with any such unauthorized representation or warranty.
Section 2. Advertiser Content
2.1 Use of Content. Reseller acknowledges and agrees that all postings, messages, text, files, images, logos, photos, video, sounds, or other content or materials displayed, posted, transmitted, or linked by Reseller’s Advertiers from the Site are Reseller’s sole responsibility. Reseller agrees that Reseller’s Advertisers own, or have a valid right to use, the Advertiser Content. Reseller acknowledges and agrees that other websites Advertisers may visit through links within the Mixpo Content are independent of Mixpo and that Mixpo makes no representation or warranty as to the accuracy, completeness, or authenticity of the information contained on those websites.
2.2 Additional Consent. Reseller is solely responsible for determining whether Reseller and/or Advertiser Content requires the consent of any third party or the license of any additional rights.
2.3 Compliance with Laws and Regulations. Reseller is responsible for adhering to all laws, rules, codes, and guidelines related to Advertiser Content. Mixpo reserves the right to accept or reject any advertisement or require the elimination or revision of any Advertiser Content.
2.4 Limitations. Mixpo prohibits advertisements that: (a) make claims or representations that are false or tend to deceive, mislead, or misrepresent; (b) offer unsupported or exaggerated promises of earnings; (c) use “subliminal perception” or other similar techniques; (d) use “Bait and Switch” tactics; or (e) make direct or implied use of government officials or any government body without official approval.
2.5 Stock Media. Mixpo grants to Reseller and Advertiser a limited, nontransferable, nonexclusive license to use certain stock media (the “Stock Media”) solely for the purpose of display in VideoAd. Mixpo makes available to Reseller and Advertiser the Stock Media on an as is basis and for convenience only and may remove the Stock Media or parts thereof from the Site or VideoAd without notice.
Section 3. Support Services
3.1 Advertiser Support. Reseller will be responsible for the embeds of VideoAd Products on the Advertiser websites, directory profile pages, search landing pages or banner ads within, or outside of, the Reseller Network. Reseller will be responsible for all packaging, billing, training and first and second tier maintenance and other support for, and any warranties made by Reseller to, any Advertiser with respect to the VideoAd Products or any products or services of Reseller. Reseller will not direct Advertisers to contact Mixpo directly without the prior written (electronic mail sufficient) consent of Mixpo. Reseller will promptly report to Mixpo all complaints of an Advertiser related to the VideoAd Products.
3.2 Mixpo Support. Mixpo will provide telephone support to Reseller during the hours of 9:00 a.m. and 5:00 p.m., Pacific Time, exclusive of weekends and Mixpo holidays, to assist Reseller with questions relating to the deployment and use of the VideoAd Products. Mixpo will also assist Reseller, as mutually agreed by the parties, in sales force training by providing information and consultation relating to the VideoAd Services and VideoAd Products to enhance sales to Advertisers, and in production training by providing a single one hour WebEx or other demonstrations of Mixpo’s Dashboard to Reseller’s sales coordinators, who will be charged with production of Repurposed VideoAds and Slideshow VideoAds. Mixpo’s obligations under this Agreement are solely for the benefit of Reseller and may be asserted only by Reseller and not by any Advertiser.
3.3 Measurement Services
3.3.2 Use of Results. Mixpo and Reseller will use the reports and information generated through the Dashboard for purposes of determining the compensation owed to Mixpo by Reseller under this Agreement. Further, Mixpo and Reseller will work jointly together in good faith to reconcile any reporting discrepancies between Reseller’s ad serving system and Mixpo’s information on a quarterly basis.
3.4 Training Services. Reseller will have the right to obtain training services under this Agreement, in addition to those training services outlined in Section 3.2 above. The scope, location, and timing of training services will be determined in writing by mutual agreement of the parties.
3.5 Service Updates and Changes. Mixpo may from time to time update and make changes to the VideoAd Services, as hosted and maintained by Mixpo, including but not limited to updates and changes made to add additional features or functionality. Mixpo will endeavor in commercially reasonable good faith to give Reseller reasonable advance notice of any such update or change that requires adjustments to Reseller’s systems.
3.6 New Services. If, at any time during the Term, Mixpo develops new features or services that it desires to market or promote to Advertisers, then upon Mixpo’s request the parties will in good faith mutually discuss upon the terms on which such marketing and promotion will occur, including without limitation the inclusion of promotional messaging in the VideoAd Services and any applicable compensation payable by or between the parties in connection with the arrangement.
Section 4. Taxes and Interest
4.1 Taxes. All compensation is exclusive of, and Reseller will pay or reimburse Mixpo for, all taxes, duties, and assessments imposed on Reseller or Mixpo in connection with the VideoAd Products or other use of the Licensed Materials under this Agreement, including without limitation all sales, use, excise, and other taxes, excluding only taxes based upon Mixpo’s net income. Reseller will hold Mixpo harmless from all claims and liability arising from Reseller’s failure to report or pay any such taxes, duties, and assessments.
4.2 Interest. Any amounts that are not paid by Reseller when due will be subject to finance charges at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law (if any), whichever is less, determined and compounded on a daily basis from the date due until the date paid. Payment of such finance charges will not excuse or cure Reseller’s default for late payment. If any amount due hereunder is overdue, Mixpo reserves the right to suspend performance until such delinquency is corrected.
Section 5. Proprietary Rights
5.1 General. Each party reserves all rights not expressly granted herein. Without limiting the generality of the foregoing, as between the parties: (a) Reseller is the owner of and reserves all right, title, and interest in and to the Reseller Network (other than Mixpo Marks and Licensed Materials therein) and all Advertiser and other data collected by Reseller on the Reseller Network; and (b) Mixpo is the owner of and reserves all right, title, and interest in and to the Mixpo Site, the Mixpo Marks, the Licensed Materials (including, without limitation, the Dashboard, VideoAd Player, and VideoAd Services), and all usage data and aggregate and anynomous transaction data, in each case from Advertisers obtained or collected by Mixpo on the Mixpo Site or through the VideoAd Services (and, in each case, all intellectual property rights associated therewith.
5.2 Licensed Materials. The Licensed Materials involve valuable patent, copyright, trade secret, trade name, trademark, and other Proprietary Rights of Mixpo. No title to or ownership of any such Proprietary Right is transferred to Reseller under this Agreement or by use of any trademark, patent, or other Proprietary Right. Mixpo reserves all such Proprietary Rights. Reseller will not infringe, misappropriate, or violate any Proprietary Rights of Mixpo. Without limiting the generality of the foregoing, Reseller will not register or attempt to register, directly or indirectly, any such patents, copyrights, trade names, trademarks, or other Proprietary Rights in or to the Licensed Materials other than in the name of Mixpo.
5.3 Reseller Content. Reseller or its licensors own and will retain all proprietary rights, including all names, trademarks, trade names, and logos, in and to the Reseller Content. Except for the license and other rights expressly granted to Mixpo in this Agreement, Mixpo will not be deemed, by anything contained in or done pursuant to this Agreement, to acquire any right, title or interest in any Reseller Content; provided, however, that Reseller hereby grants to Mixpo a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, nontransferable, exclusive license to, either directly or through third party contractors, use, copy, reproduce, distribute, display, modify, and make derivative works of the Reseller Content in connection with: (a) the development and creation of VideoAd Products for Reseller pursuant to this Agreement; and (b) the distribution of VideoAd Products to third parties for use and display on third party websites (e.g., Youtube, Google Video, Yahoo Video), if that option is selected within the Mixpo Dashboard. Any content specifically developed and created for Reseller by Mixpo and included in a VideoAd Product developed as part of the production services provided by Mixpo under this Agreement (other than any Mixpo Marks and Licensed Content therein) will be deemed to be part of the Reseller Content owned by Reseller.
5.4 Trademarks. Mixpo reserves all Mixpo Marks that Mixpo uses in connection with the Licensed Materials, but hereby grants to Reseller the nonexclusive right to use such Mixpo Marks solely to identify Mixpo and the VideoAd Services in connection with Reseller’s exercise of the license granted under Section 1.1; provided, however, that: (a) Reseller complies will all trademark usage guidelines established by Mixpo from time to time; and (b) Mixpo first reviews and approves in writing all materials containing any Mixpo trade name or trademark in advance of its use or distribution.
5.5 Proprietary Rights Notices and Credits. Reseller will cause to appear on the Licensed Materials and on or around each VideoAd Product deployed by Reseller the copyright and other Proprietary Rights notices and credits that appear on or in the Licensed Materials delivered by Mixpo.
5.6 Implementation. Reseller will take, at Mixpo’s expense, all actions during or after the Term that are reasonably requested by Mixpo to evidence, perfect, or protect Mixpo’s ownership of the Licensed Materials and the Proprietary Rights associated with ownership of the Licensed Materials.
5.7 Additional Uses. In addition to the license and other rights expressly granted to Mixpo elsewhere in this Agreement, Reseller hereby grants to Mixpo a worldwide, perpetual, irrevocable, fully-paid up, royalty-free, nonexclusive, transferable worldwide license to, either directly or through third party contractors, use, copy, reproduce, display, modify, alter, transmit, distribute, and make derivative works of the VideoAd Products and related Reseller Content and materials (including, without limitation, any spec ads and associated materials developed or created in connection with the activities under this Agreement) solely for display and viewing on the Mixpo Site for demonstration and illustrative use case purposes. For the avoidance of doubt, Mixpo may permit users of the Mixpo Site to transmit and distribute via e-mail and other means links to the Mixpo Site that enable recipients of the links to access and view the VideoAd Products and related Reseller Content and materials on the Mixpo Site for demonstration and illustrative use case purposes.
Section 6. Warranties and Indemnification
6.2.1 Of Reseller. Mixpo releases and will defend, indemnify, and hold harmless Reseller from and against any and all claims, losses, costs, liabilities, damages, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or in connection with any third party claim that the Mixpo Technology or other Licensed Materials infringe any U.S. patent, copyright, or trade secret of any third party. Mixpo’s obligations under this Section 6.2.1 will not apply to any actual or alleged infringement that is caused in whole or in part by any modification of the Licensed Materials by anyone other than Mixpo or the use of the Licensed Materials in combination with any other program or device.
6.2.2 Of Mixpo. Except to the extent inconsistent with Section 6.2.1, Reseller releases and will defend, indemnify and hold harmless Mixpo from and against any and all claims, losses, costs, liabilities, damages and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with Mixpo’s use of the Reseller Content, Reseller’s exercise of the rights granted under Section 1, Reseller’s use and other dealings with the VideoAd Services, the Licensed Materials, the Reseller Network or other items subject to this Agreement, or any act, omission, fault, negligence, strict liability or product liability of Reseller, or anyone acting by, through or on behalf of Reseller.
6.2.3 Indemnification Procedure. In connection with any claim or action described in this Section 6.2, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the claim; (b) cooperate with the indemnifying party (at the indemnifying party’s expense) in connection with the defense and settlement of the claim; (c) permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld); and (d) comply with any settlement or court order made in connection with such claim. Further, the indemnified party (at its cost) may participate in the defense and settlement of the claim.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 6, MIXPO HEREBY DISCLAIMS, AND RESELLER HEREBY WAIVES AND RELEASES MIXPO FROM, ANY AND ALL WARRANTIES, OBLIGATIONS AND LIABILITIES OF MIXPO AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF RESELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, OR NONCONFORMITY IN THE VIDEOAD SERVICES, VIDEOAD PRODUCTS OR OTHER SERVICE OR ITEM FURNISHED BY MIXPO UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF MIXPO (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) CLAIM OF INFRINGEMENT.
Section 7. Termination
7.1 Termination for Breach. Either party may terminate the Term by giving the other party written notice of termination if the other party fails to cure in all material respects any material breach or default of any obligation under this Agreement within thirty (30) days after its receipt of written notice from the terminating party regarding such breach or default.
Section 8. Limitations
8.1 Excused Performance. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement (other than any delay or failure in the payment of money) as a result of any cause or condition beyond such party’s reasonable control.
8.2 Limitation of Remedy. NEITHER PARTY WILL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, OR STRICT LIABILITY), OR OTHERWISE, FOR THE COST OF COVER OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF REVENUE, SAVINGS OR PROFITS ARISING OUT OF SUCH PARTY’S PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE OF, INABILITY TO USE, OR RESULTS OF USE OF THE VIDEOAD SERVICES, VIDEOAD PRODUCTS OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT. THE FOREGOING WILL NOT, HOWEVER, LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS UNDER SECTION 6, LIMIT EITHER PARTY’S LIABILITY FOR ANY INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF THE PROPRIETARY RIGHTS OF THE OTHER PARTY OR ANY UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION, OR LIMIT RESELLER’S LIABILITY FOR ANY BREACH OF SECTION 1 (INCLUDING, WITHOUT LIMITATION, EXCEEDING THE SCOPE OF THE LICENSE RIGHTS GRANTED TO RESELLER THEREUNDER) OR BREACH OF ITS PAYMENT OBLIGATIONS UNDER SECTION 4.
8.3 Limitation of Liability. In no event will the liability of either party (whether arising in tort, contract, or otherwise and notwithstanding any fault, negligence (whether active, passive, or imputed), product liability, or strict liability of such party) under this Agreement or with regard to the VideoAd Services, VideoAd Products, or other items furnished under this Agreement exceed the compensation paid to Mixpo under this Agreement during the twelve (12)-month period immediately prior to the events giving rise to such liability. The foregoing will not, however, limit either party’s indemnification obligations for third party claims under Section 6, limit either party’s liability for any infringement, violation or misappropriation of the proprietary rights of the other party, or any unauthorized use or disclosure of the other party’s Confidential Information, or limit Reseller’s liability for any breach of Section 1 (including, without limitation, exceeding the scope of the license rights granted to Reseller thereunder) or breach of its payment obligations under Section 4.
Section 9. Miscellaneous
9.1 Independent Contractor. Each party will be and act as an independent contractor in performing its obligations under this Agreement. Neither party will be entitled to, and will not attempt to, create or assume any obligation, express or implied, on behalf of the other party. This Agreement will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the parties or to impose any partnership obligation or liability upon either party.
9.2 Notices. Any notice or other communication under this Agreement will be in writing and will be delivered in person, by facsimile, or mailed, properly addressed and stamped, to the intended recipient at the address appearing on the signature page of this Agreement. Either party may from time to time change its address by giving the other party notice of the change in accordance with this section.
9.3 Assignment. Neither party will assign this Agreement or any right or interest in this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, that either party may assign this Agreement without the approval or consent of the other party to: (a) any affiliate of the assigning party; or (b) any purchaser of all or substantially all of the assigning party’s assets or to any successor by way of merger, stock sale, consolidation or similar transaction. Subject to the foregoing restriction on assignment, this Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and assigns.
9.4 Nonwaiver. The failure of either party to insist upon or enforce strict performance by the other of any of the provisions of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment of its right to assert or rely upon any provision or right in that or any other instance; rather, the provision and right will remain in full force and effect.
9.5 Compliance and Severability. Each party will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations now or hereafter in effect. If any term or provision of this Agreement will be found to be illegal or unenforceable, the remainder of this Agreement will have full force and effect and such provision will be interpreted, construed or reformed to the extent reasonably required to render the same legal, enforceable and consistent with the original intent underlying such provision.
9.6 No Third Party Beneficiaries. There are no third-party beneficiaries of this Agreement. This Agreement does not confer any right or remedy upon any person other than the parties and their respective successors and assigns. No action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.
9.7 Applicable Law; Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the state of Washington without reference to its choice of law principles. Reseller will not commence or prosecute any suit or claim to enforce this Agreement, or otherwise arising under or by reason of this Agreement, other than in the federal and state courts of competent jurisdiction in King County, State of Washington. Reseller hereby irrevocably consents to the jurisdiction and venue of the above identified courts with regard to any suit or claim arising under or by reason of this Agreement.
9.8 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements, between the parties with regard to the subject matter hereof. Except as expressly permitted elsewhere in this Agreement, no amendment or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by both parties.