The following terms and conditions (the “Standard Terms”) shall be deemed to be incorporated into and made a material part of the attached agreem ent (“Agreement”).
1. Parties. “Licensor” shall refer to Flick Fusion Marketing, an Iowa limited liability company. “Licensee” shall refer to the Customer, Client or Dealer referred to herein.
2. Subject Material. Licensor provides services, as set forth in the attached schedule (“Services”) and develops, maintains a nd hosts certain business applications that are accessed via the Internet (“Subject Material”). Licensee wishes to obtain Services or obtain
the right to use the Subject Material as more particularly described elsewhere in this Agreement.
3. Grant of License. Subject to the terms and conditions stipulated in this Agreement, Licensor hereby grants to Licensee an individual, non–exclusive, non–transferable license to use the Subject Material.
4. Ownership. All right, title, ownership, and intellectual property rights in and to the Subject Material shall be held by L icensor. All applicable rights to patents, copyrights, trademarks and trade secrets in the Subject Material or any modifications made, whether at
Licensee’s request or otherwise, are and shall remain with Licensor. The Subject Material is provided to Licensee to allow Licensee to exercise Licensee’s rights under the License granted herein. Only the License granted herein for the use by the Licensee of the
Subject Material is acquired by Licensee. Licensee obtains no rights which are not specified in this Agreement. L icensee agrees and warrants that all users and personnel with access to the Subject Material will be advised of the terms of this Agreement and shall
require strict compliance thereof.
5. Prohibited Uses. Except as otherwise provided in this Agreement, Licensee may not:
a. Use, copy, modify, merge, or transfer copies of the Subject Material or any portion thereof.
b. Disassemble, decompile or “unlock,” reverse engineer, duplicate, reengineer, redesign, or in any manner decode the Subject Material, except to the extent the foregoing restriction is expressly prohibited by law. Licensee agrees that the Subject Material and the
design, construction and engineering thereof, are the exclusive property and constitute valuable trade secrets of Licensor. L icensee shall not disclose or make available the Subject Material, or any portion thereof, to third parties without Licensor’s prior written
consent.
c. Make changes to the Subject Material without Licensor’s prior written consent.
d. Copy the Subject Material or any portion thereof without Licensor’s prior written consent.
6. Services. If the Agreement requires Licensor to provide Licensee with Subject Material, Licensor shall, subject to License e’s compliance with Section 7 below, develop the Subject Material for use by the Licensee, within the parameters established by Licensor,
for delivery to or use by the Licensee (the ” Deliverable”). Licensor retains the right, at any time and in its sole discreti on, to add additional features, make enhancements upgrades, alter user interface and make modifications to the Subject Material where it deems
appropriate or necessary. Licensor reserves the right to establish or modify general practices and limits concerning use of t he Services or Subject Material. If the Subject Material includes the development of a website, Licensor does not guarantee the ranking of
the web site with any search engines. Licensor does not and cannot guarantee uninterrupted operation of or access to the web site or other Subject Material. Licensee acknowledges and agrees that all elements of the Subject Material are and shall remain the
exclusive property of Licensor. However, all original materials and information supplied by Licensee to be incorporated into the Subject Material or otherwise used by Licensor in providing Services or Subject Material hereunder (the “Customer Supplied Materials”),
shall be and remain the sole and exclusive property of Licensee. Licensor shall have the full right to use the Customer Suppl ied Materials as it sees fit in the development of the Subject Material or providing any Services or Subject Material hereunder. Such use
includes, but is not limited to, sharing the Customer Supplied Materials with employees, agents or representatives of Licenso r in the performance of the Licensor’s obligations hereunder. If the Agreement requires Licensor to provide Services, Licensor agrees to
provide such Services in accordance with the timeframe mutually agreed to by the parties. Licensee agrees to have the appropr iate personnel and equipment available and training complete so the Services may be rendered efficiently. However, having such
personnel, equipment or training is not a condition for delivery of Services or Subject Material by Licensor.
Services and Service Packages that reference the collection, enhancement, posting or distribution of Licensee’s promotional, product or community data or media assets are wholly subject to Licensee’s adherence to all requirements, schedules and deadlines as
set forth by Licensor. All requirements, schedules and deadlines are fully at Licensor’s discretion. Failure of the Licensee to transmit required data or media assets to Licensor according to schedule and deadlines will nullify Licensor’s obligation to provide any
Service specific to said data or media assets. Licensee will not be entitled to credit or refund, or any additional Services in relation to said data or me dia assets. Licensor will in no way be held responsible for the posting or distribution of incorrect data or media
assets provided to them by Licensee. Licensee may be charged additional fees for all revisions, reposting, redistribution, or removal of prev iously approved data or media assets.
7. Customer Supplied Materials. Licensee shall provide, according to the timeframe mutually agreed upon by Licensor and Licensee, any necessary Customer Supplied Materials in accordance with the Flick Fusion Marketing’s Policies (the “Flick Fusion Marketing
Policies”), including but not limited to, policies related to the format and manner in which the Customer Supplied Materials are to be delivered. Failure to provide the Customer Supplied Materials in accordance with such timeframe may result in delayed delivery.
Licensor may dispose of any Customer Supplied Materials unless prepaid return arrangements, acceptable to Licensor, have previously been made.
8. Licensee Representations and Warranties; Indemnification. Licensee represents and warrants to Licensor that Licensee has t he unrestricted right to use, reproduce and publish all of the Customer Supplied Materials, without infringement of any right of any third
party including, but not limited to, any right arising out of any copyright, trademark, trade secret or other applicable law, rule or regulation. Licensee agrees to indemnify and hold Licensor, its affiliated entities, members, managers, employees, officers, agents and
representatives harmless against any and all claims, loss, damages, fines, costs and expenses of any kind, including reasonab le attorneys’ fees, incurred by Licensor in connection with, arising out of, or resulting from the use of the Customer Supplied Materials.
Further, Licensee represents and warrants that it has reviewed and understands the Flick Fusion Marketing Policies set forth on the Flick Fusion Marketing web site as modified from time to time and will comply fully therewith. The Flick Fusion Marketing Policies
are incorporated herein by this reference.
9. Delivery. The Services and Subject Materials shall be delivered to Licensee on or before the Delivery Date provide d that the Licensee complies with the terms of this Agreement and the Flick Fusion Marketing Policies, including, but not lim ited to those related
to minimum computer requirements and internal access.
10. Fees. In consideration of the Services and/or Subject Material to be provided and/or License granted by this Agreement, Licensee shall pay Licensor all fees described herein ( the “Fees”). The Up Front Investment is due and payable with signed agreement.
The Monthly Fees are due and payable on the Due Date (as specified on the monthly invoice). In the event the Services and Subject Materials are delivered to Licensor in advance o f the Delivery Date, Licensor shall pay a proration of the Monthly Fee for the
interim between delivery and start of the Initial Term. Early Delivery of Services and Subject Materials shall not alter the start or length of Initial Term as set forth in Sec tion 12 of this agreement.
Monthly Fees are subject to revision annually. All fees due for Services requested by Licensee are due and payable at the time such Services are rendered. Implementation and other services shall be invoiced on the day such servi ces are rendered. Licensee
agrees to pay Licensor all out–of–pocket expenses, including, but not limited to, travel time, travel expenses, meals, lodging, miscellaneous hardware, materials, supplies and other expenses requested or pre–approved by Licensee. The rate for services performed
by Licensor not otherwise provided for herein is $150.00 per hour per person performing such servi ces. Licensor reserves the right to amend such fees from time to time. Any payment due and not received by Licensor within th irty (30) days of the Due Date shall
be subject to interest of 1.5% per month (annual rate of 18.0%) effective from the Due Date until payment is received. In the event Licensee fails to pay any Fees within (60) days of the Due Date, then all sums due to L icensor hereunder shall be immediately due
and payable. Licensee shall reimburse Licensor for all expenses, including but not limited to, reasonable attorneys’ fees and court costs, incurred by Licensor in collecting such amounts. Notwithstanding any other provisions of this Agreement, Licensor reserves
the right, without limiting any other remedy available to Licensor, to suspend operation of the Subject Material and further performance of its obligations under this Agreement or to immediately terminate this Agreement on Licensee’s breach of any provision of this
Agreement. In no event shall Licensor be liable for any damages resulting from Licensor’s exercise of its rights under this Section.
11. Audit. Licensor may, on written notice and during normal business hours, audit (including inspection and copying of all r elevant records) Licensee’s operations for compliance with the terms o f this Agreement (an “Audit”). If the Audit reveals a breach of this
Agreement or a discrepancy between any payments due Licensor and the amount actually paid to Licensor, without limiting any o ther remedies available to Licensor, upon demand, Licensee shall immediately pay the discrepancy and the costs of the Audit.
12. Term; Termination. The Agreement shall begin on the Delivery Date and shall continue until the end of the period referenced herein (“Initial Term”). Following the end of the Initial Term all services in this Agreement will continue for successive Terms of one (1)
month (“Month–to–Month”) at Licensor’s then–current list prices unless either party gives notice in writing of its intention to Cancel (the “Cancellation Notice”). The C ancellation Notice must specify a Cancellation date upon which all services are to be terminated,
and must be delivered at least (30) days in advance of the end of the current Term.
In the event of a breach of this Agreement, the non–defaulting party may terminate this Agreement on thirty (30) days written notice, via certified US Postal Service, to the defaulting party (the “Notice of Default”). The Notice of Default must specifically state the
alleged breach and provide the defaulting party thirty (30) days to cure the breach. If the alleged breach has not been cured, then the non–defaulting party may terminate this Agreement. For purposes of this Section 12, the inaccuracy of any information pr ovided
by a third–party vendor or the breach by a third party vendor of an agreement between such vendor and a party hereto, shall not be deemed to be a breach by any party hereto. Notwithstan ding the above, Licensor may immediately terminate this Agreement,
without any liability to Licensee whatsoever, if Licensee (a) fails to pay any Fees when due, (b) attempts to transfer, sell or encumber Licensee’s rights under this Agreement or the Subject Material without Licensor’s written consent, (c) assigns or attempts to
assign the Subject Materials for the benefit of creditors, (d) Licensee becomes bankrupt either voluntarily or involuntarily, or (e) takes other similar action. Upon termination of t his Agreement for any reason, any rights and licenses granted to Licensee shall
immediately terminate. Upon the termination of this Agreement for any reason, Licensee shall immediately (i) return the original and all copies of the Subject Material and all w ritten material provided by Licensor relating to the Subject Material and (ii) remove the
Subject Material from Licensee’s computers and workstations.
13. Survival. The representations and warranties, indemnification and confidentiality obligations provided for in this Agreement shall survive the termination of this Agreement.
14. Assignment. Licensee shall not assign, transfer or encumber any rights under this Agreement or sub–license its rights hereunder or the Subject Material, in whole or part, without the prior written consent of Licensor. Attemp ts to do so shall be null and void.
15. Confidentiality. Licensee acknowledges that the Subject Material, and the provisions of this Agreement and all information submitted to Licensee related to the Subject Ma terial and this Agreement constitute trade secrets of Licensor, are proprietary and
confidential, and are provided to Licensee in reliance on Licensee’s promise to keep the Subject Material and related information confidential and for the exclusive use of the Licensee. Licensee agrees to require all of its employees, agents and representa tives
who have access to the Subject Material to be required by Licensee to hold the Subject Material and related information in strict confidence. Licensee shall not duplicate or permit duplication of the Subject Material or any information related to the Subject Material.
Licensee agrees that any prohibited disclosure under this Section would leave Licensor without an adequate remedy at law entitling Licensor to immediate injunctive relief, without bond, against Licensee.
16. Taxes. None of the Fees required by this Agreement include any applicable tax. Licensee agrees to pay any such tax in addition to the other Fees paid and agrees to indemnify and hold Licensor harmless therefrom.
17. Limited Warranty; Limitation of Liability. Licensor warrants that the Subject Material manufactured or created by Li censor, when properly installed, used and maintained, shall be free from material defects or errors which materially affect t heir utility during the
Initial Term. Licensor’s entire liability and Licensee’s exclusive remedy shall be, at Licensor’s option, (a) return of the One Time and Monthly Fees paid during the warranty period, or (b) repair or replacement of the Subject Mater ial. This limited warranty is void if
failure of the Subject Material is due to 1) accident, abuse, misapplication, or modification by Licensee; 2) Licensee’s failure to use the Subject Material pursuant to the instructions therefor; 3) Licensee’s hardware malfunctions; 4) Licensee’s interface or integration
of the Subject Material with software licensed from an unauthorized third party vendor; 5) defect in software licensed by Licensor or Licensee from a third party vendor; 6) any act outside the control o f Licensor ; 7) use by untrained employees of Licensee; 8)
Licensee’s failure to install update(s) to Subject Material. Licensor provides no warranty whatsoever concerning the Services provided. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR D ISCLAIMS ALL OTHER WARRANTIES AND
CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON–INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OR INABILITY TO USE THE SUBJECT MATERIAL OR SERVICES OR THE PROVISION OR FAILURE TO PROVIDE ANY
SERVICES PURSUANT TO THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT MATERIAL NOT ORIGINALLY MANUFACTURED OR CREATED BY LICENSOR ARE NOT COVERED BY
THE ABOVE LIMITED WARRANTY. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ACCURACY OF ANY INFORMATION SUPPLIED TO LICENSOR BY A THIRD–PARTY VENDOR.
18. Advertisement. Licensor may advertise Licensee’s use of the Subject Material, including placing Licensor’s logo and link to Licensor’s web site on Licensee’s web site.
19. Governing Law. This Agreement and any dispute under it shall be construed under and governed by the laws of the state of Iowa and must be resolved in any court located in Polk County, Iowa, with jurisdiction thereof. All parties hereto consent to exclusive
jurisdiction before said courts.
20. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of Licensor and Licensee, their successors, representatives and assigns.
21. Severability. If any part of this Agreement is found invalid, illegal or unenforceable, the remaining provisions are binding with the same effect as if the invalid, illegal or unenforceable provision was never included.
22. Waiver. Licensor’s failure to enforce any provision of this Agreement at any time shall not waive Licensor’s right to subsequently enforce any provision of this Agreement.
23. Notices. Any notices required under this Agreement must be given in writing and sent via certified mail, return receipt r equested, to the addressee at the address listed herein to the attention of the President (or such other address or person as communicated
to the other party to this Agreement).
24. Entire Agreement. This Agreement constitutes the entire agreement between Licensor and Licensee. Acceptance of th e Agreement by Licensee may be done by signing the Agreement or by accepting the terms thereof electronically. Acceptance of the
Agreement by Licensor may only be done by an employee with management responsibility. Such acceptance may be evidenced by a m anager by signing the Agreement or accepting the terms thereof electronically on behalf of the Licensor. This Agreement may
not be modified or changed except through a written amendment, signed by and approved by Licensor.
25. Electronic Acceptance. The parties hereto may accept the terms and conditions of this Agreement electronically. Any such electronic acceptance will be deeme d to be consistent with the Uniform Electronic Transactions Act and the Iowa Uniform Electronic
Transactions Act. Either party may opt out of future electronic transactions concerning this Agreement by providing written notice thereof to the other party hereto.