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ShareItMobile AdBuilder Service and License Agreement

This Service and License Agreement (“Agreement”) is made between ShareItMobile, LLC (“SiM”) and the Customer (as defined below). The parties hereto are individually referred to as a “Party” and collectively as the “Parties.” This Agreement, including the attached Schedule(s), is effective on the date that both Parties have signed this Agreement (the “Effective Date”).

1. Definitions. The following definitions (and additional definitions provided below) will apply:

1.1. “Content” means text, audio, video, pictures and/or other information and data supplied by Users via any version of the AdBuilder product that has been integrated into Customer’s Property(ies) pursuant to this Agreement.
1.2. “Customer” means the legal entity that enters into this Agreement as described on the signature page.
1.3. “Error” means a material reproducible bug or logical error that materially impairs the functionality of the AdBuilder product.
1.4. “Pricing Schedule” means Schedule A to this Agreement.
1.5. “Primary Support” means providing support to Users with regard to use of The AdBuilder product, and otherwise communicating with Users with regard to reported Errors, enhancement requests, and other matters relating to The AdBuilder product.
1.6. “Property(ies)” means each of Customer’s websites/domains listed in Schedule A.
1.7. “Secondary Support” means using reasonable efforts to modify The AdBuilder product to correct, fix, or circumvent Errors as SiM may reasonably deem appropriate, responding to Customer regarding reported Errors, advising Customer in providing Primary Support, and providing maintenance releases and updates for The AdBuilder product during the Term as they are released.
1.8. “Service” means SiM’s online service that is provided as a part of The AdBuilder product as described in Schedule B.
1.9. “Term” means the term of this Agreement as specified in Section 16.
1.10. “The AdBuilder product” means the Service and the Website Application as described in Schedule B.
1.11. “User(s)” means end-user(s), including without limitation advertisers, who are posting Content on the Property(ies) via the AdBuilder product that has been licensed to Customer.

2. Customer Use of the Service

2.1. SiM grants Customer a license to access and use the Service with each of the Properties during the Term via the Internet under and subject to the terms of this Agreement. SiM will host the Service. SiM reserves the right to make changes and updates to the functionality of the Service from time to time.
2.2. SiM grants Customer a license to permit Users to access and use the Service with each of the Properties during the Term via the Internet under and subject to the terms of this Agreement, provided that Customer supply terms of service to Users that are industry-standard with regard to privacy and limitation of liability.

3. License of Website Application

Subject to this Agreement, SiM grants to Customer during the Term a non-exclusive and non-transferable license to use, market, demonstrate, and support the AdBuilder Website Application for use with the Properties. SiM reserves the right to make changes and updates to the functionality and/or documentation of the AdBuilder Website Application from time to time.

4. Fees; Payment

4.1. Customer agrees to the setup fee and to the revenue-sharing arrangement as set forth in the Pricing Schedule.
4.2. SiM will initially invoice Customer for prepayment of the setup fee for each Property on or about the Effective Date. The initial invoice is due within thirty (30) days upon receipt. Customer’s account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Customer believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Customer must contact SiM in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
4.3. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, compounded daily, plus all expenses of collection, including reasonable attorneys’ fees and court costs.
4.4. In addition to other applicable remedies, SiM reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon five days’ email notice, if Customer’s account becomes delinquent (falls into arrears).

5. Appropriate Use of The AdBuilder Product

5.1. While Users may be any persons or organizations that wish to use the AdBuilder product on the Property(ies), Customer may not sublicense, resell, or supply the AdBuilder product for use in or for the benefit of any other organization, entity, business, or enterprise.
5.2. Customer is responsible for its use and Users’ use of the AdBuilder product and will comply with all applicable laws regarding use of the AdBuilder product and the Content, including without limitation laws involving privacy, copyright, and any applicable export controls.
5.3. SiM reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to SiM’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003.

6. Restrictions on Use of The AdBuilder Product

Customer may not alter, resell or sublicense the AdBuilder product or provide it as a service bureau. Customer agrees not to reverse engineer the AdBuilder product. Customer will not use or access the AdBuilder product to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the AdBuilder product, or (iii) make derivative works based upon the AdBuilder product. Customer will not “frame” or “mirror” the AdBuilder product. Use, resale or exploitation of the AdBuilder Product except as expressly permitted in this Agreement is prohibited.

7. Limited License to Content

Subject to the terms and conditions of this Agreement, Customer grants to SiM a non-exclusive license to use, copy, store, transmit and display Content to the extent reasonably necessary to provide and maintain the Service. SiM will not use the Content for any purpose other than to provide the Service to Customer and for statistical reporting purposes.

8. SiM’s Ownership

SiM retains all rights in The AdBuilder product. SiM asserts no ownership rights to the Content or to any Customer-provided materials. This Agreement grants no ownership rights to Customer. No licenses are granted to Customer except as expressly stated herein. The ShareItMobile name and logo are trademarks of SiM.

9. Support

9.1. Customer shall be responsible for providing Primary Support during the Term.
9.2. SiM shall be responsible for providing Secondary Support during the Term.

10. Publicity

10.1. Customer agrees that Customer’s brand names and logos may be used in press releases, advertising and publicity relating to ShareItMobile, subject to Customer’s approval, which will not be unreasonably withheld.
10.2. SiM agrees that SiM’s brand name and logo may be used in press releases, advertising and publicity relating to Customer’s use of The AdBuilder product, subject to SiM’s prior written approval, which will not be unreasonably withheld.
10.3. Each Party may issue reasonable trademark use guidelines. Each Party agrees to comply with the other Party’s reasonable trademark use guidelines.

11. Reserved

12. Additional Warranties

Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.

13. Indemnification

13.1. SiM will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the AdBuilder product (other than that due to Content). In case of such a claim, SiM may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the applicable component of the AdBuilder product with a non-infringing component, or if it deems such remedies not practicable, SiM may terminate the Service and this Agreement without fault. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
13.2. Customer will defend, indemnify, and hold SiM (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party alleging that the Content or other data or information supplied by Customer or Users infringes the intellectual property rights or other rights of a third party or has caused harm to a third party.
13.3. Customer will defend, indemnify, and hold SiM (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Content and/or other Customer or User-related information or data, including, without limitation, prompt payment to SiM of all costs (including attorneys’ fees) incurred by SiM as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay SiM for its staff time in responding to such third party subpoena or compulsory legal order or process at SiM’s then applicable hourly rates.
13.4. In case of any claim that is subject to indemnification under this Agreement, the Party that is indemnified (“Indemnitee”) will provide the indemnifying Party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each Party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

14. Disclaimers and Limitations

14.2. Except in regard to Customer’s breach of Sections 2, 3, 5, 6, 13, or 15, in no event will either Party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
14.3. The AdBuilder product may include gateways, links or other functionality that allows Customer and/or Users to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). SiM does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. SIM MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.

15. Confidentiality

15.1. “Confidential Information” means non-public information, technical data or know-how of a Party and/or its affiliates, which is furnished to the other Party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
15.2. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving Party and not subject to a confidentiality obligation to the providing Party; (ii) independently developed by the receiving Party; (iii) publicly disclosed through no fault of the receiving Party; (iv) rightfully received by the receiving Party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing Party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving Party will promptly inform the providing Party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
15.3. Neither Party will use the other Party’s Confidential Information except as reasonably required for the performance of this Agreement. Each Party will hold in confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such Party’s obligations hereunder.
15.4. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each Party will, upon the request of the disclosing Party, either: (i) return all of such Confidential Information of the disclosing Party and all copies thereof in the receiving Party’s possession or control to the disclosing Party; or (ii) destroy all Confidential Information and all copies thereof in the receiving Party’s possession or control. The receiving Party will then, at the request of the disclosing Party, certify in writing that no copies have been retained by the receiving Party, its employees or agents.
15.5. In case a Party receives legal process that demands or requires disclosure of the disclosing Party’s Confidential Information, such Party will give prompt notice to the disclosing Party, if legally permissible, to enable the disclosing Party to challenge such demand.

16. Term and Termination

16.1. The Term commences on the Effective Date and continues until this Agreement is terminated as set forth herein.
16.2. For each Property, Customer will use commercially reasonable efforts to install the AdBuilder product and to keep it active for at least six (6) months (the “Initial Term”).
16.3. SiM, in its sole discretion, may suspend or terminate Customer’s use of The AdBuilder product and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within five (5) business days of written notice of such breach. Either Party may terminate this Agreement for convenience after the Initial Term with not less than thirty (30) days’ written notice to the other.
16.4. The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, and the following Sections: 1 (Definitions), 8 (SiM’s Ownership), 13 (Indemnification), 14 (Disclaimers and Limitations), 15 (Confidentiality), 16 (Term and Termination), 17 (Notice), 19 (Non-Solicitation), and 21 (Miscellaneous).

17. Notice

Either Party may give notice by means of electronic mail to the other Party’s primary contact’s email address set forth on the signature page of this Agreement or by written communication sent by first class mail or by courier service to the other Party’s address set forth on the signature page of this Agreement. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. A Party may, by giving notice, change its applicable address, email, or primary contact.

18. Assignment

This Agreement may not be assigned by Customer without the prior written approval of SiM but may be assigned by SiM to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of SiM’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

19. Non-Solicitation

Each Party agrees that during the Term and for a period of one (1) year thereafter, it will not solicit or contact for the purposes of hiring employees of the other Party with whom the Party had material contact under this Agreement. This provision will not apply to employment resulting from general solicitation for employment or contractors on the Internet, the press, or through other mass media.

20. Professional Services

20.1. Customer may retain SiM to perform professional services (“Professional Services”) as the Parties may agree upon in writing in the form of a work order or other writing (“Work Order”). SiM will use reasonable efforts to carry out the Professional Services stated in the Work Order and to provide any resulting functionality in the Service made available online to Customer and Customer’s Users. Except as the Parties otherwise agree in a Work Order, Professional Services and the results thereof are made available “AS IS.”
20.2. Unless otherwise agreed in writing in the Work Order, Professional Services are provided by SiM on a time and materials basis at SiM’s then applicable rates and subject to such deposit or advance payment as SiM may require. Maintenance and support of code or functionality created by means of Professional Services will likewise be on a Work Order basis under this Section unless otherwise agreed in writing. The code and functionality made or provided under this Section and all interests therein, including copyrights, will be SiM’s property. Access to the results of Professional Services will be available as part of the Service during the Term unless otherwise agreed in writing. The initial Work Order (if any) is attached as Schedule D. Unless otherwise agreed in a Work Order, SiM may bill for Professional Services on a weekly or monthly basis, at its discretion.

21. Miscellaneous

21.1. Choice of Law; Jurisdiction. This Agreement will be governed and interpreted in accordance with the substantive law of the Commonwealth of Virginia and applicable US federal law. The state and federal courts located in the City of Newport News, Virginia will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
21.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
21.3. No Agency. No joint venture, partnership,
employment, or agency relationship exists between Customer and SiM as a result of this Agreement or use of the Service.
21.4 No Waiver. The failure of SiM to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by SiM in writing.
21.5 Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such Party, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
21.6 Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and SiM and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each Party.