PRIVATE LABEL APP AGREEMENT
This PRIVATE LABEL APP AGREEMENT (“Agreement”) is effective as of the date set forth on the signature page hereto (“Effective Date”) and is by and between Action Data Systems, LLC (“Action”) and the undersigned client (“Client”). This Agreement, along with the schedules and exhibits and the sales proposal from sales meetings ("sales proposal") hereto, constitutes the complete agreement of the parties relating to the subject matter hereof and supersedes any prior representations or agreements. Any reproduction of this Agreement made by reliable means, whether signed manually or electronically, shall have the same effect as an original. No amendment to this Agreement, or waiver of any terms hereof, shall be effective unless agreed by the parties in writing.
1. PRIVATE LABEL APP
During the Term, Action will design, develop, maintain and host a private-label iOS and Android mobile app (the “App”) populated with content and data provided by Client (“Client Data”) and containing the features set forth on Exhibit A and Exhibit B(the “Services”), to be available to end users through the Apple Store and Google Play (collectively, the “App Store”). The Services will include submission of the App to the App Store and use of commercially reasonable efforts to obtain approval for the App to be distributed to end users on the App Store; provided that, if the App Store denies approval on account of the Client Data, the Client will make changes to the Client Data as necessary to obtain the App Store’s approval. Action will provide updates, modifications and improvements to the App from time to time and will refresh the content of the App, based on new Client Data provided by Client, as set forth on Exhibit A and Exhibit B. Client has a nonexclusive, nontransferable right and license to market the App to Client’s customers and visitors (“Visitors”). Action’s relationship with Visitors will be governed by a separate end user agreement between Action and each Visitor. Client shall have sole responsibility for ownership of, the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Data. Client grants to Action a non-exclusive, royalty-free, non-transferable (except as provided in Section 12) and sublicensable license, during the Term, to reproduce, perform, display, transmit and distribute the Client Data through the Service on the App. The foregoing license includes the right to permit end users to access the Client Data utilizing the App. Subject to the foregoing license, Client retains all ownership and intellectual property rights in the Client Data. Client represents and warrants that it is the owner of the Client Data and that the Client Data will not infringe, misappropriate or violate any intellectual property right or other right of any third party and will not violate any law.
Client agrees to pay the fees (the “Action Fees”) set forth during the sales meetings. Client shall pay all invoices within fifteen (15) days of invoice date. Except as expressly set forth in this Agreement, all Action Fees are nonrefundable.
In the event of any late payment, Client shall be obligated to pay, in addition to any payment due, the amount of 1.5% interest per month, or the highest rate permitted by applicable law, whichever is less, on any outstanding account balance.
3. TERM AND TERMINATION
The term of this Agreement (the “Initial Term”) shall begin upon the Effective Date and shall continue in force for the length of time set forth in the sales proposal. This Agreement will automatically renew for the length of time set forth in the sales proposal unless earlier terminated pursuant to the express provisions of this Agreement or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Either party may terminate this Agreement upon written notice to the other party if such other party is in breach of any material term or condition of this Agreement (including without limitation failure to pay any Action Fee) and has not cured such breach within a period of thirty (30) days after receipt of written notice from the non-breaching party of such breach, provided that such period shall automatically be extended for an additional thirty (30) days if the breaching party is not in breach of any payment obligation under this Agreement and is diligently working to cure such breach.
Either party may terminate this Agreement immediately on written notice to the other party if such other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise.
Upon the effective date of any termination or expiration of this Agreement for any reason, (i) Action will cease providing the App and Services, and all rights and licenses granted to Client hereunder with respect to the App and Services will immediately cease; (ii) Action will request removal of the App from the App Store; (iii) Client will immediately cease use of the App and Services; and (iv) Client will pay to Action any outstanding Action Fees. The obligations of Action and Client under Sections 3, 4, 7, 8, 9, 10, and 13 of this Agreement will survive expiration or termination of this Agreement.
4. INTELLECTUAL PROPERTY RIGHTS
Client acknowledges that, subject to the rights and licenses expressly set forth in this Agreement, Action, or its third-party licensors, are the sole and exclusive owners of: (a) all right, title and interest in and to the App and the Services, (b) any research results, ideas, algorithms, methodologies, techniques and other information created, developed, published, conceived or first reduced to practice by Action or in any way made available through the App or the Services including, without limitation, any modifications thereto or other derivative works based thereon, and (c) all copyrights, trademarks, patents, trade secrets and other intellectual property rights related thereto. Nothing contained herein shall create, nor shall be construed as, an assignment to Client of any right, title or interest in or to the App or the Services. Except as expressly permitted by this Agreement, Client shall not: (i) copy, print, reproduce, distribute, download, frame, mirror, republish, display, transmit, link to, modify, transfer or assign, create any derivative works based on the App or the Services; or, (ii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, grant a security interest in, or otherwise commercially exploit the App or the Services. Action acknowledges that Client is the sole and exclusive owner of all right, title and interest in and to the Client Data, and Client retains all rights in and to the Client Data.
All notices or other communications to or upon either party shall be in writing delivered by overnight courier or email to the addresses set forth on the signature page hereto or such other address as a party may specify in writing. Any notice so sent shall be deemed given when delivered.
6. RELATIONSHIP OF PARTIES
The relationship of the parties under this Agreement is that of independent contractors. Neither Action nor Client can bind the other, and nothing in this Agreement creates any relationship of principal or agent.
7. CONFIDENTIALITY; PUBLICITY
Each party (the “Receiving Party”) shall keep, and shall cause its employees and agents to keep, confidential any and all Confidential Information of the other party (the “Disclosing Party”) in the same manner as it protects its own confidential information of like kind, but in no event shall it exercise less than due diligence and care. “Confidential Information” means (i) all information that the Receiving Party receives from the Disclosing Party that is marked as confidential or proprietary, or that would, by the nature of the information or the manner in which it is disclosed, be reasonably deemed confidential; and (ii) the terms and conditions of this Agreement, including without limitation the Action Fees. The Receiving Party agrees: (i) to exercise at least the same degree of care to safeguard the confidentiality of any of the Disclosing Party’s Confidential Information as the Receiving Party exercises to safeguard the confidentiality of its own confidential information, but not less than reasonable care; (ii) to use the Disclosing Party’s Confidential Information only in connection with exercising its rights and performing its obligations under this Agreement; (iii) to not disclose or disseminate the Disclosing Party’s Confidential Information to any third party; and (iv) that the only employees and agents who will have access to the Disclosing Party’s Confidential Information will be those with a need to know and who are bound to maintain the confidentiality of such Confidential Information. Upon termination of this Agreement, the Receiving Party shall return or deliver to the Disclosing Party, or shall certify to the Disclosing Party that it has destroyed, all Confidential Information. The Receiving Party acknowledges that due to the unique value of the Confidential Information of the Disclosing Party, in the event of any breach of this Section by the Receiving Party, the Disclosing Party may not have an adequate remedy at law and shall be entitled to enforce its rights hereunder by an action for specific performance and injunctive or other equitable relief without the necessity of proving actual damage or posting a bond.
Neither party shall issue or release any announcement, statement, press release or other publicity or marketing material relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Action may, without Client’s consent, include Client’s name, logo and/or other indicia in its lists of Action’s current or former customers in promotional and marketing materials.
8. DISCLAIMER OF WARRANTIES
Action makes no warranties or representations, express or implied, with respect to any actions, strategies, expenditures or operations pursued by Client as a result of information provided by Action. THE APP AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. ACTION DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR OR BUG FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE, OR WILL PERFORM IN AN UNINTERRUPTED MANNER. Action makes no representation that the App or the Services are appropriate or available for use in locations other than the United States of America. If Client uses the App and the Services outside of the United States of America, Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
Action shall defend, indemnify and hold harmless the Client from and against all third party losses awarded against Client in a final judgment based on a claim (i) of Action’s material breach of any representation, warranty or obligation of Action set forth in this Agreement; or (ii) that Client’s use of the App or the Services infringes any intellectual property right of a third party; provided, however, that Action shall have no obligation under this Section 9 with respect to claims arising out of (A) any Client Data provided by Client for use in connection with the App or the Services; (B) the use of the App or the Services in combination with any materials or equipment not supplied by Action or specified in writing by Action, if the infringement would have been avoided by the use of the App or Services not combined with such materials or equipment; or (C) any modifications or changes made to the App or the Services by or on behalf of any person other than Action. Client shall defend, indemnify and hold harmless Action from and against all third party losses awarded against Action in a final judgment based on a claim of (i) Client’s material breach of any representation, warranty or obligation of Client as set forth in this Agreement; or (ii) Action’s use of Client Data.
10. LIMITATION OF LIABILITY
In the event of termination of this Agreement by either party pursuant to Section 3 hereof, Client shall be entitled to receive, as its sole and exclusive remedy, a pro rata refund of Client’s prepaid Action Fee, and upon such refund, Action shall have no further liability to Client. This remedy is in lieu of all other remedies, whether oral or written, express or implied. IN NO EVENT SHALL ACTION’S AGGREGATE LIABILITY ARISING OUT OF OR BASED UPON THIS AGREEMENT REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING WITHOUT LIMITATION, ANY ACTION IN TORT OR CONTRACT, EXCEED THE SUM OF ALL ACTION FEES PAID BY CLIENT PURSUANT TO THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM. IN NO EVENT SHALL ACTION BE LIABLE FOR LOSS OF PROFITS OR DATA, USE OR INTERRUPTION OF BUSINESS, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING TO CLIENT'S USE OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF ACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. FORCE MAJEURE
If the performance of any obligation by Action or Client under this Agreement (other than the payment of money) is prevented, restricted or interfered with by reason of any act or event which is beyond the reasonable control of the party affected, then the affected party shall be excused from such performance to the extent of such prevention, restriction or interference, provided that it shall use reasonable commercial efforts to avoid or remove such causes of nonperformance. If either party is unable to perform for a period of more than sixty (60) days due to any such act or event, the other party may terminate this Agreement.
Neither this Agreement nor any rights or obligations hereunder, in whole or in part, are assignable by Client without the prior written consent of Action; and any attempt to assign the rights, duties or obligations under this Agreement without such consent shall be a breach of this Agreement and be null and void.
13. GOVERNING LAW; VENUE
This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the State of Rhode Island, without regard to conflict of law principles. The parties agree that any action or proceeding arising out of or related to this Agreement shall be brought exclusively in the in the state or federal courts of the State of Rhode Island, and each of Action and Client hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding.
EXHIBIT A - APP FEATURES
Private label app to run on current iOS and Android devices of Visitors. The App will allow Visitors to hear tour information audio, view video, text and pictures, and perform navigation functions on their internet-connected mobile devices based on GPS location. The App will offer tour guide features to enhance Visitors’ tour experience, share moments with friends/family over social networks and conduct e-commerce activities such as gift store and ticket purchases and making donations.
Number of downloads: unrestricted