a. “Company” Hownd, Inc. or any of its subsidiaries.
b. “Company Marks and Materials” means the Company’s trademarks, service marks, logos, and other marketing materials provided by Company for use in connection with primary Agreement(s).
c. “Initial Customer Agreement” means the initial order to purchase Products from Company.
d. “Net Revenue” means gross subscription fee revenues less refunds, chargebacks, hardware fees, and payment processing fees.
e. “Products” means the Company products and services for which are actively available for sale at any given time.
f. “Prospects” means new Company prospective customers, accepted by Company and meets eligibility in terms of primary Agreement(s).
g. “Residual Fees” means the residual fees specified in agreement with the Company.
h. “Residual Fee Window” means the timeframe after a Prospect’s Initial Customer Agreement in which Residual Fees can be earned.
i. “Partner” means any person(s) or company that enters a partnership agreement with Hownd, Inc. or any of its subsidiaries.
j. “Claim” means a formal dispute against a party.
Use of Company Marks and Materials. Subject to the terms and conditions of any Agreement, Company grants to party a non-transferable, non-exclusive license to use the Company Marks and Materials to promote the relationship established by any Agreement, market the Products and as otherwise reasonably necessary to perform its obligations set forth in any Agreement. Parties use of Company Marks and Materials will be subject to Company’s then-current use guidelines. Parties shall promptly provide Company with samples of all materials that use the Company Marks and Materials for Company’s quality control purposes and Company may terminate the use of the Company Marks and Materials, in whole or in part, if it considers Party’s use does not to conform to Company’s use guidelines. Except as provided herein, nothing contained in any Agreement shall be construed to grant to a Party any right, title, or interest (including all intellectual property rights therein) in or to the Company Marks and Materials, which shall be retained by Company.
Partner Obligations and Restrictions. When prospecting for referrals and otherwise performing under any Agreement, Partner will (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations or warranties concerning the Company’s products and services, except as set forth in Company provided printed marketing collateral or documentation furnished by Company; (c) comply with all applicable federal, state, and local laws and regulations including, without limitation, the CAN-SPAM Act of 2003, as amended, and all applicable privacy regulations; and (d) not refer any prospective referrals to a licensor or supplier of products or services that provide functionality that competes with or is similar to the functionality of the Products, except if the prospective referral expressly rejects Partner’s referral to Company; (e) Partner will market and actively promote Company Products through available channels such as but not limited to, Partner Website, Blog, Social Media, Print Collateral; (f) Partner will indemnify and defend Company from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts’ fees and expenses, that Company may incur as the result of any action brought against Company and arising out of the acts of Partner or its agents in breach of this Section.
Confidentiality. Each Party acknowledges that it may receive valuable trade and business secrets and other proprietary and confidential information, including, without limitation, information about the other Party’s business, products, equipment, systems, techniques and practices (collectively, “Confidential Information“) (for purposes of this Section, a Party receiving Confidential Information shall be referred to as a “Receiving Party” and a Party disclosing Confidential Information shall be referred to as a “Disclosing Party“). Except as otherwise required by law, the Receiving Party shall not, and shall cause each of its directors, officers, employees, agents and representatives (collectively, “Representatives”) not to (i) disclose the Confidential Information to any person or entity other than Representatives of the Receiving Party that (a) need to know the Confidential Information for the purposes contemplated by any Agreement, and (b) agree to be bound by the provisions of this Section or are bound by an obligation of confidentiality that protects the Confidential Information to at least the same extent as any Agreement, or (ii) use the Confidential Information for any purpose other than the purposes contemplated by any Agreement. Disclosure of Confidential Information will not be precluded by any Agreement if such disclosure is (a) necessary to establish rights under any Agreement, or (b) required by law or regulation; provided, however, that prior to disclosure under clause (b), the Receiving Party shall notify the Disclosing Party of such disclosure and make a good faith attempt to obtain a protective order prior to such disclosure. Promptly upon the written request of the Disclosing Party, the Receiving Party shall, and shall cause its Representatives to, return to the Disclosing Party or destroy all Confidential Information. If the Receiving Party destroys the Confidential Information, it shall certify that it has done so in writing and promptly deliver that certificate to the Disclosing Party.
Term and Termination. The standard term of Agreements shall last twelve (12) months from the Effective Date and shall automatically renew for additional twelve (12) month periods unless terminated in writing by either Party at least thirty (30) days prior to the end of the then-current term. In addition, either Party may terminate any Agreement, with or without cause, upon thirty (30) days notice. Termination by either Party does not terminate, limit, or restrict the rights and remedies of the other Party. Upon any termination or expiration of any Agreement, all licenses granted hereunder, including without limitation Referrals Agent’s license to the Company Marks and Materials, shall terminate and Partner will refrain from marketing and promoting the Products or representing itself as a referral representative of Company. Each Party will either return to the other Party or destroy any Confidential Information of the other Party in its possession. Partner will remain eligible for any potential Referral Fees due to Partner pursuant to the primary agreement for eligible purchases that occurred prior to termination. Eligible purchases that do not hit the 90-day mark (outlined in section 7) prior to the termination date will not be eligible for residual fee payment. Partner acknowledges and agrees that Company will incur no liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by the Parties arising from, or incident to, any termination of any Agreement by Company or any expiration hereof that complies with the terms of the Agreement. Sections 7 through 18 shall survive any expiration or termination of any Agreement.
Disclaimer of Warranties. COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT OF THIRD PARTY RIGHTS REGARDING ANY AGREEMENT OR THE PRODUCTS. ANY WARRANTIES REGARDING THE PRODUCTS WILL BE MADE BY COMPANY DIRECTLY TO THE CUSTOMER PURSUANT TO THE COMPANY’S STANDARD LICENSING AGREEMENT OR AS OTHERWISE AGREED IN WRITING BETWEEN THE CUSTOMER AND COMPANY.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY AGREEMENT, (I) NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER ANY AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS OR GOODWILL, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND (II) UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO ANY AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $10,000. The foregoing limitations will not apply to liability resulting from a breach of Sections 8 or 9.
Assignment. Neither Party may assign any Agreement or the rights and obligations contained herein without the prior written consent of the other Party, provided that either Party may assign any Agreement, in whole and without the prior written consent of the other Party, in the event of a merger, acquisition, or the sale of all or substantially all of such Party’s assets or the specific business line that is the subject of any Agreement.
Force Majeure. Neither Party shall be responsible for any failure to perform its obligations under any Agreement if failure is caused by acts of nature, war, strikes, failure of the Internet, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes which are beyond the reasonable control of such Party.
Severability and Construction. If any provision of any Agreement is held invalid as written, the remainder of any Agreement will continue in full force and effect and the invalid provision will be deemed modified so as to be enforceable to the maximum extent permitted by applicable law. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect any Agreement. The Parties have participated jointly in the negotiation and drafting of any Agreement and each Party has had the opportunity to review any Agreement with its attorney. Accordingly, if an ambiguity or question of intent or interpretation arises, any Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of any Agreement.
Governing Law and Venue. Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to any Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of Arizona without regard to choice of law principles. Venue for any litigation shall be in the courts of appropriate jurisdiction in Maricopa County, Arizona.
Entire Agreement, Modification and Waiver. Agreements is the entire Agreement between the Parties pertaining to the subject matter hereof, and it supersedes any prior oral or written agreements, commitments, understandings, or communications with respect to the subject matter hereof. Agreements may not be modified except by a written amendment expressly referencing any Agreement and signed by a duly authorized officer of each Party. No right or remedy of either Party under any Agreement shall be deemed waived unless such waiver is in writing and signed by a duly authorized officer of the waiving Party.