WHEREAS IL is the owner of an application known commercially by the name “Interactive Life,” which is designed to enable a Customer to establish its own mobile application as a Communication tool;
WHEREAS Customer desires to access the Application (as defined below), and IL desires to provide such access to Customer; and
WHEREAS the Customer desires that IL provide to Customer with certain professional services related to the implementation, development and support of the Application.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below, and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Application” means the application known commercially as “Interactive Life“ that is designed to enable a Customer to establish its own mobile application as a tool to interact with people using mobile devices.
“Documentation” means the IL user materials provided to Customer in connection with the Application.
Access to Application and Documentation; Use of Application.
2.1 Access Grant. Subject to Customer’s compliance with the terms and conditions of this Agreement, IL grants to Customer the non-exclusive and non-transferable right during the Term to permit Customer to access the Application and to use such Application only for the purposes set forth in this Agreement. Customer assumes responsibility for the actions of all employees, independent contractors, consultants, or other agents of Customer (“Affiliate”) to whom Customer provides access to the Application. Any action by an Affiliate that would be a breach of this Agreement, if such action were taken by Customer, will be deemed a breach by Customer of the applicable term of this Agreement.
2.2 License Grant. IL grants to Customer a non-exclusive, revocable, royalty-free, fully paid up license during the Term to use and reproduce the Documentation solely for internal use in order to facilitate permitted use of the Application.
2.3 Services. IL will provide Customer access to the Application and the various services identified in this Agreement (collectively, the “Services”).
2.4 Support. IL will provide the Services and Support in accordance with the service levels set forth in Exhibit A.
2.5 Prohibited Use. Customer will not: (a) download, attempt to download, or otherwise obtain a copy of the Application; (b) allow access to the Application or Documentation by any party other than Designated End Users; (c) incorporate any portion of the Application or Documentation into products or tangible media; (d) use the Application or Documentation for any uses other than those permitted by this Agreement; (e) attempt to reverse engineer, disassemble, reverse translate, decompile or in any other manner decode any portion of the Application; or (f) remove any patent, trademark, or copyright notices which IL places on the Application or Documentation.
2.6 Purpose. The Application is intended to enable Customer to establish its own mobile application as a tool to interact and communicate with people using mobile devices and for no other purpose. The Application supplied by IL hereunder is for the sole use of Customer and may be used only on computers operated by Customer. The Application may be used only by Customer for the purposes specified in this Agreement and specifically as restricted.
2.7 Customer License to IL. When Customer provides content to or through the Application, Customer authorizes IL to make such copies thereof as it deems necessary in order to facilitate the Services provided under this Agreement. By providing Customer Materials to IL or including in the Application, Customer hereby grants, represents and warrants that it has the right to grant to IL, an irrevocable, perpetual, non-exclusive, license, royalty-free license to store, use, copy, reformat, translate, excerpt (in whole or in part) and distribute such Customer Materials in connection with operation of the Application and provision of Services in relation to this Agreement.
3.1 Scope of Work. Customer is engaging the services of IL to provide maintenance, hosting, integration and other professional services related to the Application, as such services are more fully described in this Agreement (the “Work”). IL will complete the Work in accordance with the specifications set forth in this Agreement. If either Party desires to make changes to such specifications during the Term, such Party will so notify the other Party, and the Parties may mutually agree in writing on requested adjustments, if any, to the other terms of this Agreement required accommodating such changes.
3.2 Conformity to Schedule. Subject to all the provisions of this Agreement, IL has sole discretion and control over the manner in which Work is performed, so long as the requirements for Work set out in this Agreement are met, and further so long as all such Work is performed in a professional and workmanlike manner. Subject to the provisions of this Agreement, IL will handle and be responsible for all details and logistics of performance of the Work.
3.3 Configuration. IL will develop and make available to Customer the setup and configuration of: (i) hosting services, (ii) implementation services, and (iii) support services for the Application. Using, in part, background information provided by Customer, IL will configure and test software and/or hardware to identify hosting requirements to enable Customer to access and use the Application. The Services will include:
3.3.1 Design and delivery to Customer of a customized interface to the Application as further described in Section 3.4 (the “Customer Interface”), by: (i) compiling a system design that allows Customer to design their own app and; (ii) documenting and delivering to Customer materials detailing how the Application can be optimized for Customer’s end users;
3.6 Future Customization and Configuration. Any future customization or configurations requested by Customer that are agreed upon in writing by both Parties will be conducted pursuant to a schedule of work. Any such agreements shall be considered part and parcel of and shall be governed by the terms of this Agreement.
3.7 Additional Services. The parties may agree, in a separate written agreement, for IL to provide additional services.
Reservation of Rights. Except for the rights expressly granted in Section 2, IL expressly reserves all right, title, and interest in and to the Application, Documentation, the Work, and Services, except to the extent of any of Customer’s data, documents, materials, end user content, or information that Customer stores on IL’s systems in connection with using the Application (“Customer Materials”). Customer agrees that IL does not, directly or by implication, by estoppel or otherwise, grant any other rights or licenses to Customer under this Agreement. As between Customer and IL, the Documentation, the Work, the Application and its database schema, and all intellectual property rights associated with the Documentation, the Work, the Application and its database schema are and shall be the sole and exclusive property of IL, subject only to the limited, non-exclusive licenses granted in this Agreement to Customer.
Limited Warranties, Disclaimer and Limitation of Liability
5.1 Mutual Warranties. Each Party represents and warrants that: (a) this Agreement has been duly and validly executed and delivered by such Party and constitutes a legal and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (b) to its knowledge, such Party’s execution, delivery and performance of this Agreement will not conflict with or violate any provision of law, rule or regulation to which such Party is subject, or any agreement or other obligation directly or indirectly applicable to such Party or binding upon its assets.
5.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 6, IL DISCLAIMS ALL WARRANTIES AND DUTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND DUTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE, RESULTS, LACK OF NEGLIGENCE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, TITLE, OR NON-INFRINGEMENT.
5.3 Limitation of Liability. EXCEPT FOR A BREACH OF CONFIDENTIALITY OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, FAIL OF THEIR ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM, AND EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, EXCEPT FOR A BREACH OF CONFIDENTIALITY OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, FAILURE OF ESSENTIAL PURPOSE, TRADE USAGE, OR OTHERWISE, WILL IN NO CASE EXCEED THE AGGREGATE AMOUNT ACTUALLY RECEIVED BY IL FROM CUSTOMER DURING THE FIRST SIX MONTHS OF THE INITIAL TERM.
5.4 Indemnification. IL will indemnify, hold harmless, and defend Customer and its officers, directors, and subsidiaries (the “Indemnified Parties”) from (i) any and all claims of infringement by the Work, Application, Documentation or Services of any intellectual property right of any third party, or (ii) any claim that, if true, would establish a breach by IL of its confidentiality obligations under this Agreement. Customer will provide IL with prompt notice in writing of any claim, provided IL will not be relieved of its indemnification obligation by Customer’s failure to provide prompt notice except to the extent it materially prejudices IL’s ability to defend such claim. As to any claim under subsection (i) above, IL’s obligations to indemnify and hold the Customer harmless under this Section will be reduced to the comparative extent that such claim results from: (a) modifications made or authorized by Customer and not performed or authorized by IL; (b) Customer’s use of the Application, Documentation or Services other than as contemplated by the Documentation; or (c) the intentionally wrongful acts of Customer. IL will be entitled to control the defense or settlement of such claim, provided that IL will permit the Indemnified Parties to participate in the defense and settlement of any such claim, at the Indemnified Party’s expense, with counsel of the Indemnified Parties’ choosing; and provided further that Customer will not be bound by any settlement of an indemnifiable claim that Customer does not approve in advance in writing.
5.5 No Obligation. IL has no obligation to monitor Customer content, communications or conduct by Customer’s end users. IL does not endorse, give any assurances related to, or assume any responsibility or liability for end users or any end user content which may be posted to or otherwise uploaded to the Application as implemented by Customer. IL does not endorse, give any assurances related to or assume any responsibility or liability for the Customer Materials, actions, policies, practices, views or beliefs of Customer in connection with the Application or this Agreement.
5.6 Right to Terminate. Notwithstanding anything else in this Agreement, IL reserves the right, its sole and absolute discretion, to restrict and/or terminate end user accounts, as applicable, and/or to remove end user information, content or communications from the Application in whole or in part.
5.7 Customer Responsible for User Content. Customer is solely responsible for the photos, profiles (including name, image, and likeness), messages, notes, text, information, music, video, listings, and other content that it uploads, publishes or displays on or through IL or transmits to or shares with other users. Customer understands and agrees that it may not provide or share any content which could expose IL, its users and third parties to any harm or liability of any type. By way of example but not limited to the following, Customer agrees to not upload, download, copy, distribute or otherwise make publicly available:
Content that may be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, indecent, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; or
Unsolicited or unauthorized advertising, surveys, contests, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or
Personal information of any user or third party, including addresses, phone numbers, email addresses, Social Security numbers and credit card numbers, except with the express consent of the user or third party; or
Content which are or contains IL App viruses, malicious code or files or programs designed to interrupt, destroy, degrade or limit the functionality of any computer, IL App or hardware, telecommunications equipment or device; or
Content that would constitute, encourage or provide instructions for a criminal offense, or that would otherwise create liability or violate any local, state, national or international law; or
Content that would be harmful or encourage conduct harmful to others, especially minors; or
Content that contain images, photographs, IL App or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you have sufficient ownership or license rights to do so and you are not aware of an infringement claim that has been or will be asserted against the item; or
IL App that is missing copyright notices, or has had copyright notices, statements of origin, digital rights management controls or similar markings or protections modified, deactivated or circumvented.
IL App code that you believe is or may be subject in whole or in part to a license that requires the IL App or a derivative work to be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributable at no charge, unless the terms of complete license are prominently displayed in connection with the IL App code.
Content that is otherwise prohibited or restricted by rules and guidelines established by IL.
5.8 User Indemnification. Customer agrees to indemnify and hold IL, and its directors, officers, agents, contractors, employees, and volunteers, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with Customer’s use of the Application, including but not limited to any Customer Materials uploaded, downloaded, copied, distributed or otherwise made publicly available, Customer’s conduct and interaction with end users of the Application, any violation of this Agreement, or violation of any law or the rights of any third party.
6.1 Confidential Information. “Confidential Information” means all nonpublic information that the Disclosing Party designates as confidential at the time of the disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the Receiving Party should in good faith treat as confidential. For avoidance of doubt, all Customer Materials are Confidential Information of Customer, and the Application and Documentation are the Confidential Information of IL. “Disclosing Party” means either IL or Customer when such Party is disclosing Confidential Information to the other Party under this Agreement. “Receiving Party” means either IL or Customer when such Party is receiving Confidential Information from the other Party under this Agreement. Confidential Information does not include information that: (a) was generally known to the public at the time disclosed by the Disclosing Party; (b) became generally known to the public other than through a breach of this Agreement by the Receiving Party after the time of disclosure to the Receiving Party by the Disclosing Party; (c) was in the Receiving Party’s possession free of any obligation of confidentiality at the time of disclosure to the Receiving Party by the Disclosing Party; (d) was rightfully received by the Receiving Party from a third party that was free of any obligation of confidentiality after disclosure by the Disclosing Party to the Receiving Party; or (e) was independently developed by the Receiving Party without reference to or use of Confidential Information disclosed by the Disclosing Party.
6.2 Permitted Use. The Receiving Party will only use the Disclosing Party’s Confidential Information to fulfill its obligations under this Agreement. The Receiving Party will not disclose, give access to, or distribute any of the Disclosing Party’s Confidential Information to any third party, except as expressly authorized in this Agreement. The Receiving Party will take reasonable security precautions (at least as protective as the precautions it takes to preserve its own confidential information of a similar nature) to keep the Disclosing Party’s Confidential Information confidential.
6.3 Government Orders. The Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law. In such cases, however, the Receiving Party will (a) give the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy (except to the extent the Receiving Party’s compliance with the foregoing would cause it to violate a court order or other legal requirement); (b) disclose only such portion of information as is required by the governmental entity or otherwise required by law, and protect the remainder of the Confidential Information; and (c) at the Disclosing Party’s request and expense, use commercially reasonable efforts to obtain confidential treatment (e.g., by protective order or equivalent) for any Confidential Information so disclosed.
6.4 No Implied Rights. By disclosing Confidential Information to the Receiving Party, the Disclosing Party does not grant any express or implied rights to the Receiving Party to or under any of the Disclosing Party’s (or any third party’s) patents, copyrights, or trademarks.
6.5 Feedback. Customer may from time to time provide suggestions, comments or other feedback (“Feedback”) to IL with respect to the Application, the Documentation, or the Work. Notwithstanding anything to the contrary in this Agreement, all Feedback is and shall be entirely voluntary and shall not, absent separate written agreement, constitute Confidential Information or create any confidentiality obligation for IL. IL is free to use, implement and disclose such Feedback as it sees fit, entirely without obligation of any kind to Customer. For avoidance of doubt, Customer Materials do not constitute Feedback.
Term and Termination
7.1 Term. This Agreement will be effective as of the Effective Date, will continue in effect until the agreed upon number of years after the Effective Date (“Initial Term”), and will automatically extend for successive additional periods thereafter (“Renewal Term(s)”) unless (a) either Party provides the other with written notice of non-renewal at least 60 (sixty) days prior to the expiration of the then-current Initial Term or Renewal Term (as applicable); or (b) the Agreement is earlier terminated as provided herein. The Initial Term together with any Renewal Terms is the “Term.”
7.2 Termination by Either Party For Cause. Except for breaches of Section 7 (Confidentiality), either Party may terminate this Agreement at any time if the other Party is in material breach of any warranty, term or condition of this Agreement and has failed to cure that breach within thirty (30) days after written notice thereof. Either party may terminate this Agreement immediately upon written notice at any time if the other party is in breach of Section 6 (Confidentiality). The terminating party will incur no liability to the other for damages of any kind resulting solely from terminating this Agreement in accordance with its terms.
7.3 Termination with Payment. Customer may terminate at any time upon payment of in full of all fees due to IL during the Term of this Agreement or during the Term of any renewal of this Agreement, as may be applicable.
7.4 Post Termination Return and Destruction of Confidential Information. Upon termination, all rights and licenses granted to Customer hereunder will cease and IL will issue a final invoice to Customer for all Services and Work performed up to the date of termination. Customer will pay such invoice pursuant to Section 4.2 of this Agreement. Within ten (10) days following the termination of this Agreement, each Party shall return to the other any Confidential Information of the other Party and irretrievably delete all such Confidential Information that the Parties possess in electronic or intangible form. At the Disclosing Party’s request, the Receiving Party shall provide the Disclosing Party with a certificate of destruction signed by an officer of the Receiving Party. On Customer’s request, IL will return to Customer data inputted by Customer into the Application within 10 days of termination of this Agreement, subject to Customer’s payment to IL of fees for retrieval and delivery of such data on a time and materials basis, pursuant to the payment schedule for Custom Development in Exhibit B. Within ten (10) days of termination of this Agreement, Customer shall return to IL all Documentation provided to Customer in relation to this Agreement, including any and all copies of the Documentation which Customer may have in its possession or control.
7.5 Survival. The following Sections will survive any termination or expiration of this Agreement: 2.5, 4 (as to any amounts due and payable by Customer incurred prior to termination or expiration so long as such fees are invoiced within 60 days of termination or expiration), 5, 6, 7, 8, 9 and 10.
7.6 No Access After Termination. Upon termination, Customer will no longer have the ability to access or control its account or account information, or content or communications that it has provided to or through the Application, as applicable. IL has no obligation to assist Customer to migrate its account information or content or communications.
Independent Contractors; No Agency. Nothing in this Agreement will be construed as creating an agency, partnership, joint venture, franchise, or employment relationship between the Parties. Neither Party will have the authority to make any statements, representations, or commitments of any kind, or to take any action, binding on the other except to the limited extent (if any) provided for in this Agreement. Customer will not be liable for any personal or business expense of IL, except as expressly contemplated by this Agreement, and IL is prohibited from incurring any liabilities or expenses on behalf of Customer except as expressly provided in this Agreement.
9.1 Governing Law, Jurisdiction and Venue. This Agreement, and all claims arising under or related to this Agreement, will be governed by and construed in accordance with the laws of the State of Washington without regard to the conflicts of law provisions thereof. Any dispute arising under, in connection with, or incident to this Agreement or concerning its interpretation will be resolved through arbitration. The party seeking arbitration shall file a demand with the Judicial Arbitration & Mediation Service (JAMA) in Seattle, Washington or a similar service located in Seattle, Washington.
9.1.2 Arbitrator. The arbitration shall be conducted by a single arbitrator to be mutually agreed upon by the parties within thirty (30) days from the date on which the demand for arbitration is filed. If within thirty (30) days the parties cannot agree upon an arbitrator, an arbitrator will be designated by the arbitration service selected under Section 16.3, subject to any qualifications for the arbitrator upon which the parties may have agreed. The judgment and the award of the arbitrator shall be final. Such award may be entered by a court of competent jurisdiction.
9.1.3 Notwithstanding anything in this Agreement to the contrary, any party to this Agreement may request a court of competent jurisdiction to issue such temporary orders as may be necessary or appropriate to prevent irreparable harm. No such application shall be deemed a waiver of any party’s right to arbitrate. Venue for any action brought by a party to this Agreement shall be in King County in the State of Washington.
9.2 Severability. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and provisions will remain in full force and effect and will in no way be affected, impaired or invalidated. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
9.3 No Waiver. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no such waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.
9.4 Assignment. Neither Party will assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party. Notwithstanding the immediately preceding sentence, either Party may assign this Agreement without the other Party’s prior written consent to an Affiliate or as part of a merger, or a sale or transfer of all or substantially all of the assigning Party’s assets. The assigning Party shall provide the non-assigning Party notice of any attempted assignment. Any attempted assignment in violation of this Section will be voidable at the option of the non-assigning Party within sixty (60) days following receipt of notice of such assignment. This Agreement will be binding upon, enforceable by, and inure to the benefit of the Parties and their respective and permitted assignees.
9.5 Cumulative Remedies. The rights and remedies of the Parties under this Agreement are cumulative and are not exclusive of any rights or remedies available at law or in equity or by any other agreement between the Parties.
9.6 Notices. All notices issued under this Agreement: (a) shall be in writing; (b) shall be hand delivered or sent by registered or certified mail postage paid, return receipt requested or by overnight courier service, postage paid; and (c) will be deemed given as of (i) the day they are delivered by a nationally recognized express delivery service (such as Federal Express or DHL), addressed as set forth below, (ii) the day they are sent by fax to the fax number set forth below, but only if (A) the receiving fax device immediately generates a message, printed by the sending fax device, that confirms receipt, and (B) receipt of the fax is confirmed by a telephone call between sender and recipient, or (iii) three (3) days after they are deposited in the sender’s national mail system, postage prepaid, certified or registered, return receipt requested.
9.7 Force Majeure. Except for payment obligations which may be delayed but not excused, neither Party will be liable for any delays to its performance hereunder resulting from circumstances beyond reasonable control including without limitation fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
9.8 No Liens. Customer shall keep the Application and all Documentation including any and all updates, improvements, modifications, and enhancements, free and clear of any and all claims, liens, and encumbrances attributable to the use or possession of the Application and Documentation by Customer its Affiliates.
9.9 Entire Agreement. This Agreement is not an offer by either Party and it is not effective until signed by both Parties. This Agreement, including the Exhibits attached hereto, is the entire agreement of the Parties with respect to the Application and performance of the Work by IL for and on behalf of Customer and merges all prior and contemporaneous communications and proposals, whether electronic, oral or written, between the Parties with respect to the Work. This Agreement shall not be modified except by written agreement dated subsequent to the date of this Agreement and signed on behalf of the Parties by their respective duly authorized representatives.
Upon Execution of this Contract, IL will grant Customer the ability and right to access the Interactive Life Studio Content Management System wherein Customer can create their own Mobile App for distribution to Mobile Devices. There is no restriction on distribution of the App to users, other than as stipulated below in the section on Pricing and Payment.
Acceptance of Terms
The combined Terms of this document form a legal contract and govern Customers’ access and use of IL’s Application.
Customer is responsible to maintain the confidentiality of passwords of each of its assigned users of the IL App. User accounts must be used by the intended User. Customer is solely responsible for all activities, damages and losses that occur or are caused by activities under your account, even if the activities were not known or authorized by it. If Customer suspects any loss or unauthorized disclosure of confidential information, Customer should immediately change its password. If Customer believes that there has been unauthorized use of its account, it should immediately notify IL.
Access and Use
The IL Application is designed primarily to facilitate communication, which may include information of a personal and sensitive nature. When using communication services provided by IL, you agree to post and send only messages and materials that are proper, appropriate and respectful. By way of example, but not limited to the following, you agree that you will not:
Impersonate any person or entity, or falsely represent yourself or your identity in any material way.
Attempt to collect by electronic or other means:
Password information from other users; or
For commercial purposes or for purposes beyond communication with and within your Customer, as appropriate; or
In an unlawful manner or in connection with an unlawful activity, or , in violation of any applicable code of conduct or other guidelines; or
In a manner that could damage, disable, overburden, degrade or impair access to or use of IL.