PILOT AND CS LIVE AGREEMENT
This Pilot and CS Live Agreement (the “Agreement”) is entered into by and between Content Square, Inc. a Delaware corporation, together with its parent company Content Square, SAS, a French corporation (“Content Square”) and the Company.
The Parties agree as follows:
1. Purpose. The Company and Content Square wish to exchange information of a proprietary and confidential nature in order for the Parties to conduct a demo to demonstrate the value of Content Square’s UX analytics tool(s) (“CS Solution”) with Company’s own provided data (the “Services”). For purposes of this Agreement, the Party disclosing confidential information is hereinafter referred to as the “Disclosing Party” and the Party receiving confidential information hereunder is hereinafter referred to as “Receiving Party.”
2.1 “Confidential Information” means any information, technical data, or know-how, whether presently existing or hereafter developed, considered proprietary or confidential by the Disclosing Party (defined below) including, but not limited to, any materials specifically marked as “Confidential” or Proprietary”, any information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, the Disclosing Party’s or its affiliates’ research, products, computer hardware and software, plans, designs, architecture, drawings, services, developments, inventions, processes, specifications, diagrams, engineering, marketing, techniques, documentation, customer and supplier lists and information, information that identifies an individual or can reasonably identify an individual, product ideas, pricing information, procedures, data concepts, business and marketing plans or strategies, financial information, operations information and business opportunities disclosed by the Disclosing Party or its affiliates to Receiving Party (defined below) either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to the Disclosing Party’s or its affiliates’ premises. Confidential Information shall also include any disclosed information of third parties that a Disclosing Party or its affiliates is obligated to protect as trade secret or confidential.
2.2 “Services” means the access to Content Square’s CS Solution as listed under the Order Form.
3. Confidentiality. For purposes of this section, any party disclosing Confidential Information is hereinafter referred to as the “Disclosing Party” and any party receiving Confidential Information is hereinafter referred to as the “Receiving Party.” Any provided Confidential Information will remain the sole and exclusive property of the Disclosing Party or its affiliates. The Receiving Party shall not use Confidential Information for any purpose outside the scope of this Agreement or disclose any Confidential Information of the Disclosing Party or its affiliates except with the Disclosing Party's prior written permission; provided that the Receiving Party may disclose any Confidential Information of the Disclosing Party or its affiliates to its employees who have a need to know such Confidential Information for purposes of these General Terms and who are bound to a written agreement protecting such Confidential Information as required hereby pursuant to terms no less restrictive than as provided under this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party or its affiliates at least in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party or its affiliates, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure. In the event that the Disclosing Party is unable to obtain a protective order or other appropriate remedy, or if it so directs the Receiving Party, the Receiving Party shall furnish only that portion of the Confidential Information that the Receiving Party is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information. The Receiving Party agrees that the information disclosed by the Disclosing Party or its affiliates need not be marked “Confidential” to be considered Confidential Information. Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party hereunder; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party or its affiliates without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party as evidenced by written documentation existing at the time of such independent development; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. Upon termination of the Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form of media, of the Disclosing Party’s Confidential Information, or destroy all such copies, at Disclosing Party’s request, and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party shall need not destroy electronic archives and backups made in the ordinary course of business where it would be commercially impracticable to do so; provided that any such Confidential Information retained shall remain subject to the obligations of confidentiality set forth herein. Due to the unique nature of the Confidential Information, monetary damages may be inadequate to compensate either party for any breach by the other party of its covenants and agreements set forth in this Agreement. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury and, in addition to any other remedies that may be available, in law, in equity or otherwise, each party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the other party.
4. Use Limitations. The Services may not be used for any purpose beyond the scope of these General Terms including, but not limited to, commercial use not contemplated expressly hereunder, and is subject to the following additional limitation(s): (i) usage shall be capped to ten (10) million Monthly Page Views; (ii) any usage over the prescribed page view limitation shall require the Company to purchase additional resources and/or services; and (iii) Company shall not, nor will Company allow its authorized users (not including Content Square personnel) to (or attempt to): (a) copy, modify, adapt, frame, mirror, display, republish, download, translate or otherwise create derivative works of the Services; (b) reverse engineer, de-compile, disassemble, reverse compile or otherwise attempt to discover the source code of the Script or the Services or any part thereof; (c) rent, lease, sell, assign, sublicense or otherwise transfer rights in the Services, except in connection with a merger or sale of all or substantially all of Company’s assets; (d) use the Services or any part thereof to provide services to third parties; (e) remove any proprietary notices or labels on the Services; (f) knowingly use, post, transmit or introduce any device, software or routine in a manner intended to interfere or attempt to interfere with the operation of the Services or any part thereof; or (g) use the Services for purposes in violation of any laws applicable to Company’s use of the Services.
6. Personal Data. Company agrees and acknowledges that CS Solution is not intended for the collection of any personal data other than IP addresses, cookie IDs, and behavioral analytics data of visitors of Company’s webpage/application. For such purpose, Company shall restrict the transfer of any such personal information to Content Square.
7. Warranties. EXCEPT AS PROVIDED HEREIN AND TO THE EXTENT PERMITTED BY LAW, CONTENT SQUARE EXPRESSLY MAKES NO OTHER WARRANTIES, AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES, CS SOLUTION, SCRIPTS, OR DOCUMENTATION THEREOF, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, CONTENT SQUARE DOES NOT WARRANTY THAT THE CS SOLUTION, SCRIPTS, OR DOCUMENTATION WILL MEET CUSTOMER NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE CS SOLUTION WILL BE UNINTERRUPTED. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPLETENESS OR PERFORMANCE.
8. Indemnification and Limitation of Liability:
8.1 The Receiving Party agrees to indemnify, defend and hold harmless the Disclosing Party from and against any and all claims, losses, liabilities, damages, or costs (including reasonable attorney’s fees and court costs) which result from either (i) third party claims or (ii) its unauthorized use or disclosure of the Confidential Information by the Receiving Party or its affiliates of the terms of this Agreement.
8.2 EXCEPT WITH RESPECT TO CLAIMS OF INDEMNITY OR BREACH OF INDEMNITY OR CONFIDENTIALITY IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL DAMAGES OR LOSS OF PROFITS OF ANY KIND, HOWEVER CAUSED, WHETHER IN ACTION OR IN CONTRACT OR TORT, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY COMPANY FOR THE SERVICES AND NOT EXCEED ONE THOUSAND (USD $1,000) DOLLARS.
9. Fees. In consideration of the Services, Company shall pay Content Square the then applicable rate as stated in the Order Form.
10. Term. The term shall commence upon the Effective Date and continue for a period as outlined in the Order Form (the “Term”). Upon expiration or termination of this Agreement: (i) all licenses granted hereunder shall terminate and Content Square may immediately cease providing any Services hereunder; and (ii) each Party shall, at its own expense, return or destroy at the other Party’s choice, any documentation or material in its possession belonging to the other Party related to this Agreement and certify in writing to the other Party that it has complied with this obligation.
11. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
12. Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses set forth herein. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the first presentation of a national or international registered mail; or (iii) forty-eight (48) hours after sending by confirmed facsimile. Notices to Content Square shall be addressed to the attention of its Chief Legal Officer. Either Party may change its address for notice by giving notice of such address change in the manner provided herein.
13. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law.
14. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. Each Party consents to, and agrees that each Party is subject to, the exclusive jurisdiction of the courts of the State of New York, County of New York with respect to any actions relating to this Agreement, including in case of plurality of defendants or call for warranty.
17. Compliance. Parties agree to comply with applicable Data Protection and privacy laws and regulations worldwide including but not limited to state and federal law and regulations.
18. Entire Agreement. This Agreement, including all exhibits and addenda hereto, if any, constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements and terms, proposals or representations, written or oral, including any other terms contained on Content Square’s website, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted.
19. No Representation or Further Obligations. Each Party agrees that its execution of this Agreement does not obligate it to enter into any further agreements or to proceed with any possible relationship or transaction with the other Party. None of the Confidential Information disclosed hereunder will constitute any representation, warranty, assurance, guarantee, or inducement with respect to the accuracy or completeness of any Confidential Information.
20. Independent Development. Subject to compliance with the obligations of this Agreement, neither Party shall be restricted from directly or indirectly, on its own or by others on its behalf, or for itself or for the benefit of third parties (i) independently (i.e., without use of or reference to the Confidential Information) acquiring, licensing, developing, manufacturing or distributing any technology that is similar to any technology disclosed hereunder, or that performs the same or similar functionality, or (ii) discussing, reviewing or pursing business opportunities similar to those discussed by the Parties pursuant to this Agreement.
21. Survival. The section of this Agreement which by their nature shall survive the expiration or termination of this Agreement.