PLEASE READ THIS ENTIRE PARTNERSHIP AGREEMENT CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND INNOVATE MR, LLC.
BY ENTERING INTO THE MASTER TERMS AND CONDITIONS WITH INNOVATE MR, LLC, YOU ALSO AGREE TO BE BOUND BY THIS PARTNERSHIP AGREEMENT (collectively, the “Terms and Conditions” or “Agreement”) by and between the person, entity or organization executing the Master Terms and Conditions.
BY AGREEING TO THESE TERMS AND CONDITIONS, YOU AGREE THAT YOU HAVE EXPRESS, IMPLIED OR APPARENT AUTHORITY TO BIND THE ENTITY, ORGANIZATION OR ENTERPRISE FOR WHOM YOU ARE ACTING ON BEHALF.
This Partnership Agreement (“Agreement”) is entered into as of the Effective Date, between Innovate MR, LLC. (“Innovate MR”), and you as Supplier on behalf of itself and its affiliates (collectively, “Supplier”).
WHEREAS, Innovate MR is in the business of sourcing individuals to answer and complete online paid surveys, focus groups and other remunerated targeted marketing offers and Survey Solutions for the benefit of Innovate MR’s various marketing research clients (“Market Research Clients”).
WHEREAS, Supplier has access to, and has the capability to supply individuals who may be target candidates (collectively, “Respondents”) for completion of the interviews and Survey Solutions requested by Market Research Clients.
NOW THEREFORE the parties for good and valuable consideration, the receipt of which is hereby acknowledged, agree to as follows:
1. Non-Exclusive Representation.
Innovate MR hereby appoints Supplier as a non-exclusive for the exposure of potential Respondents, via the API Solution, to the Innovate MR Survey Inventory. Pursuant to the terms of this Agreement, Innovate MR and its authorized representatives shall expose potential Respondents to the Survey Inventory for Supplier invitations to such potential Respondents for paid Survey Solutions and other remunerated targeted marketing offers.
2. Supplier Requirements.
2.1. Respondent Inventory. To enable Innovate MR to maximize the survey revenue for the Survey Inventory, Supplier agrees to, at minimum, work with Innovate MR to ensure the quality of respondent inventory that is allocated for the Innovate MR Surveys. This includes, without limitation, sourcing Respondents for Innovate MR Surveys that are real people who are engaged on the Supplier websites and provide meaningful and accurate responses to Innovate MR Surveys. At the sole discretion of Innovate MR or the Market Research Clients, failure of the Supplier to provide quality Respondents, will result in Innovate MR’s immediate right (without any right to cure by Supplier) to terminate this Agreement and forfeiture of any monies due to Supplier related to fraudulent activity with respect to the Innovate MR Survey completions. Also, and for the avoidance of doubt, under no circumstance shall Innovate MR be obligated to pay Supplier any fees in any way relating to, or arising out of, Respondents that are deemed invalid (in the sole discretion of Innovate MR)in connection with any Innovate MR Surveys.
2.3 User IDs/Passwords/Compliance. Supplier shall be responsible for keeping any user ID and password information, provided by Innovate MR in connection with the use of Innovate MR Technology, strictly confidential and not share such information with any unauthorized person. Supplier shall be solely responsible for any and all actions taken using Supplier’s accounts and passwords.
Supplier will use commercially reasonable means, as reasonably directed by Innovate MR, to expose Respondents and potential Respondents to Innovate MR Surveys. Supplier will comply with CAN-SPAM, PIPEDA, applicable cookies legislation in the United Kingdom and the European Union and any and all other international, federal, state and local applicable laws, regulations and rules.
2.4 Non-Circumvention. During the Term, Supplier agrees that it will not reverse engineer Innovate MR Survey URLs to circumvent Innovate MR and otherwise go directly or indirectly to sell or market to Market Research Clients.
2.5 Promotions. All promotions created and delivered by Supplier shall be in compliance with customary promotion guidelines (including, without limitation, that Supplier shall not use leading questions such as stating what type of respondent will qualify or promotions in connection with Objectionable Material) and any other requirements reasonably requested by Innovate MR. In the event that Innovate MR determines, in its sole discretion, that one or more promotions is not in compliance with these aforementioned requirements, then Supplier agrees to remove the non-complaint promotion(s) within one (1) business day of written notice by Innovate MR.
3.1. Payment Terms. Innovate MR shall pay Supplier its share of Net revenue within forty- five (45) days of the end of the month in which Innovate MR Survey revenue is received by Innovate MR from Market Research Clients. Any dispute regarding a payment from Innovate MR hereunder must be submitted to Innovate MR in writing within thirty (30) days of posting date of such payment or it shall be deemed waived. If Innovate MR pays Supplier by check, Supplier must collect such payment within one hundred and eighty days (180) of the date of the check; otherwise such check will be null and void.
3.2. Taxes. Innovate MR assumes no responsibility for paying income taxes on behalf of Supplier. By participating in the Service, Supplier assumes complete and sole responsibility for any taxes owed as a consequence of participation in the service. Supplier shall provide Innovate MR with appropriate tax information, including earnings on Form 1099. Suppliers residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to Innovate MR for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. International Suppliers may be asked to complete appropriate forms for tax purposes.
3.3. Adjustments. At the end of the monthly billing period, adjustments may be made to the Supplier payments due to client discrepancies, rate changes, or traffic fraud (including without limitation, any chargebacks or deductions for invalid completes that may be immediately identified or at a later juncture identified by Innovate MR or by Market Research Clients. These adjustments are calculated and applied to Supplier by Innovate MR at their sole direction.
3.4 Traffic Reports. Innovate MR will report traffic to Supplier in a manner and on a schedule determined by Innovate MR unless otherwise requested in writing by the Supplier and agreed to in writing by Innovate MR.
4. Limited License.
4.1 Limited License. Subject to the terms and conditions of this Agreement and during the Term, Innovate MR grants to Supplier a limited, revocable, non-transferable, non-sub licensable, non-exclusive license to (a) place any Innovate MR links on the Supplier Sites, or as otherwise authorized by Innovate MR in writing, solely for the purpose of the Service, (b) display Innovate MR creative materials provided by Innovate MR on the Supplier sites as required for the Service, and (c) use Innovate MR Technology solely as contemplated herein. For the avoidance of doubt, this Agreement Supplier no rights contact any Innovate MR Panelist. Supplier grants to Innovate MR a limited, revocable, non-transferable, non-sub licensable, non-exclusive license to use Supplier’s name and logo for the sole purpose of performing the Service.
4.2 Restrictions. Supplier will not authorize, enable or engage in any of the following: (a) the use, display, syndication, sublicensing or delivery of Innovate MR links or Innovate MR creative anywhere other than on Supplier sites or as otherwise authorized in writing by Innovate MR; (b) modification, alteration or any change of the Innovate MR links or Innovate MR creative except as authorized in writing by Innovate MR; (c) any act which may obstruct or otherwise hinder Potential or participation in Innovate MR Surveys; (d) any act which may encourage users, whether directly or indirectly, to falsify information provided in the Innovate MR Surveys; (e) the generation of fraudulent clicks on promotions or fraudulent completes (whether through manual clicks, the use of robots, the use of optimization software, or other tools); (f) the artificial inflation of click-throughs or completes (including without limitation offering incentives for the purpose of increasing page views or clicks); or (g) use of Innovate MR Technology in any way other than that contemplated herein. Supplier agrees that under no circumstance will it, directly or indirectly through any third parties or agents, attempt to (or actually) reverse-engineer, deconstruct or decompile the Innovate MR Technology during the Term of this Agreement or at any time thereafter.
5.1 Proprietary Rights. Supplier hereby grants to Innovate MR a worldwide, non-exclusive, perpetual, royalty-free license to exposure of potential Respondents to the Innovate MR Survey Inventory contact and incorporate it into its API Solution.
5.2 Innovate MR Services. Except for any limited license rights expressly provided in this Agreement, Innovate MR and its suppliers have and will retain all rights, title and interest in and to (a) the Service (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof and (b) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Supplier or any other party relating to the Service. Supplier acknowledges that any license rights to the Service are limited and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Supplier under this Agreement or otherwise. The Innovate MR name, the Innovate MR logo and the product names associated with the Service are service marks or trademarks of Innovate MR or third parties, and no right or license is granted to use them unless expressly set forth in this Agreement.
6. Warranties/Covenants and Disclaimers.
7. Limitation of Remedies and Damages.
7.1 EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 THIS AGREEMENT OR FOR SUPPLIER’S BREACH OF SECTIONS 2, 4, 5, 6 OF THIS AGREEMENT OR AS IT RELATES TO THE INDEMNIFICATION OBLIGATION OF EITHER PARTY, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, INNOVATE MR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO SUPPLIER SHALL NOT EXCEED THE GREATER OF $5,000 OR THE AMOUNT ACTUALLY OWED FOR SERVICES RENDERED (IF ANY) BY INNOVATE MR TO SUPPLIER UNDER THIS AGREEMENT.
7.3 The parties agree that the limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
8.1 Supplier, at its own expense, will indemnify, defend and hold harmless Innovate MR, and its employees, officers, directors, representatives and agents and the respective successors and assigns of each of the foregoing (“Innovate MR Indemnified Parties”), from and against any loss, liability, judgment, penalty, damage or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and costs) incurred or suffered by any Innovate MR Indemnified Party resulting from, arising out of, or in connection with any third-party claim, suit, action, or other proceeding brought against any Innovate MR Indemnified Party based on, arising from or relating to Supplier’s actual or alleged breach of any representations, warranties, covenants or obligations under this Agreement.
8.2 Innovate MR, at its own expense, will indemnify, defend and hold harmless Supplier, and its employees, officers, directors, representatives and agents and the respective successors and assigns of each of the foregoing (“Supplier Indemnified Parties”), from and against any loss, liability, judgment, penalty, damage or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and costs) incurred or suffered by any Supplier Indemnified Party resulting from, arising out of, or in connection with any third-party claim, suit, action, or other proceeding brought against any Supplier Indemnified Party based on, arising from or relating to Innovate MR’s actual or alleged copyright infringement in connection with the Innovate MR Technology under this Agreement.
9. Confidential Information.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any code, documentation or technical information provided by Innovate MR (or its agents), performance information relating to the Service, payment amounts, names and other information of Innovate MR Market Research Clients and Innovate MR Surveys, and the terms of this Agreement shall be deemed Confidential Information of Innovate MR without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information; provided, that, notwithstanding anything to the contrary, Supplier shall not use names and other information of Innovate MR Market Research Clients and Innovate MR Surveys without the prior written approval of Innovate MR. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10. Legal Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, Innovate MR shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
11. Governing Law.
The parties agree that this Agreement will be construed in all respects in accordance with the laws of the State of California applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in the State of California, Los Angeles County.
All notices and approvals desired or required to be given to either party hereunder shall be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid, (ii) Federal Express, UPS One-Day Service, or other similar overnight courier service, with proof of sending, or (iii) hand delivery, with acknowledgement of receipt, transmission, in each case to the other party’s address set forth herein.
Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent of the other in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
15. No Partnership.
Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venturer of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
16. Defaults; No Waiver.
No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Order or under law or otherwise shall be cumulative and not alternative.
This Agreement shall commence as of the Effective Date and any renewal thereof (the “Term”) shall automatically renew for one year periods unless terminated (a) by either party upon sixty (60) days written notice to the other party or (b)as also set forth in accordance with this Section 17.
17.1. Termination for Breach. Other than a breach of Section 2.1 (which shall result immediate termination and has no right of cure), if a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) days after written notice of material breach, the non-defaulting party may terminate the Agreement upon written notice to the Defaulting Party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement or at law or in equity.
17.2. Termination for Insolvency. Either party may immediately terminate this Agreement by delivering to the other party written notice of such termination in the event: (i) the other party files a voluntary petition or is the subject of an involuntary petition in bankruptcy; (ii) the other party suffers the appointment of a temporary or permanent receiver, trustee, or custodian for all or a substantial part of its assets; or (iii) the other party ceases doing business or commences dissolution or liquidation proceedings.
17.3. Termination by Mutual Agreement. The Parties may terminate this Agreement by mutual written agreement at any time.
The following are terms used in this Agreement not previously defined herein.
18.1 API Solution” means Innovate MR’s confidential and proprietary application programming interface that provides Supplier with access to Innovate MR Surveys, where use of such API Solution is also governed by, and subject to that certain agreement incorporated herein at Exhibit “A”.
18.2 “Router Solution” means Innovate MR’s confidential and proprietary system designed to route Respondents to the appropriate Innovate MR Surveys.
18.3 “Objectionable Material” is content that is libelous, pornographic, obscene, defamatory or otherwise in violation of local, state or federal law.
18.4 “Innovate MR Panelist” means those panelists who are part of the proprietary Innovate MR Panel.
18.4 “Survey Inventory” means that inventory of Innovate MR Surveys that Innovate MR maintains at any given time.
18.5 “Innovate MR Surveys” means survey projects, secured by Innovate MR through its Market Research Clients for the purpose of gaining insights.
18.6 “Innovate MR Technology” means the proprietary technology and other systems of Innovate MR used to perform the Service, including, but not limited to, the Innovate MR Network, the API Solution, Router Solution, and any other tools provided by Innovate MR.
18.7 “Service” means the exposure to Innovate MR to Respondents that are provided by Supplier for the purpose of Innovate MR Surveys.
18.8 “Survey Solutions” mean Innovate MR’s services and proprietary technology (including all Innovate MR Technology) and the procurement, delivery, completion, tracking, reporting and payment on Innovate MR Surveys.
19. Entire Agreement.
This Agreement is intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof. This Agreement may not be changed or modified, or any covenant or provision hereof waived, except by an agreement in writing, signed by the party against whom enforcement of the change, modification or waiver is sought, and not otherwise.
The following provisions survive termination of this Agreement: Sections 5 through 20.
API License Agreement
This API License Agreement (the “Agreement”), effective as of the date of acceptance of this Agreement (the “Effective Date”), is by and between Innovate MR, Inc. (“Innovate MR”) and you, or the individual, company or other entity that you represent (“Licensee”). If you are entering into this Agreement on behalf of a company or other entity, you represent and warrant that you have authority to bind such company or other entity to this Agreement.
By using applications that interact with Innovate MR’s products and services (the “Innovate MR Services”) or accessing the Innovate MR API, including but not limited to requesting authentication credentials or making calls to the Innovate MR API, Licensee unconditionally consents and agrees to be bound by, and to be a party to, this Agreement.
This Agreement sets forth the rules around use of the Innovate MR Services, the Innovate MR API, and content shared on Innovate MR that is accessible through the Innovate MR API or otherwise.
a. Use of Licensed Materials. This Agreement governs the use by Licensee of the following, all of which collectively are the “Licensed Materials”: (a) the application programming interface (“API”) of Innovate MR and any accompanying or related documentation, source code, executable applications and other materials (collectively, the “Innovate MR API”) as modified from time to time; and (b) any other content made available through the Innovate MR API (collectively, the “Content”).
b. Use of Innovate MR Marks. This Agreement also governs the use by Licensee, and restrictions on such use, of Innovate MR’s name, trademarks, service marks, logos and other branding made available for use in connection with the Licensed Materials (the “Innovate MR Marks”).
Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 3, Innovate MR grants to Licensee a nonexclusive, nontransferable, non-sublicensable, worldwide, revocable right and license during the Term to: (a) use and make calls to the Innovate MR API and to make use of the Innovate MR Services (and Licensed Materials accessible therefrom) to develop, implement and use software applications, services or products (the “Licensee Applications”) that interact with the Innovate MR Services; (b) use, the Content only to the extent necessary to format and display it through the Licensee Applications and (c) use and display the Innovate MR Marks only to identify that the Licensed Materials originate from the Innovate MR Services. Licensee shall include and display Innovate MR Marks, including, as applicable, the logo (as provided by Innovate MR), in the Licensee Applications. The Innovate MR Marks, including without limitation, the logo, shall be in its original size and be placed in a clear and visible part of the customer interface of the Licensee Applications. In addition, the Licensee shall include the Innovate MR Marks, including without limitation, the logo, in its original size, in a clear and visible part of any communication with Licensee’s customer or potential customers, such as, without limitation, in marketing materials, websites, press releases and other communication. Licensee Applications do not include those applications that use or access the Innovate MR API or the Innovate MR Services in order to monitor the availability, performance, or functionality of any of the Innovate MR API or the Innovate MR Services, for any other benchmarking or for other competitive purposes.
The licenses granted in Section 2 are explicitly conditioned on Licensee’s adherence to the following restrictions and requirements: You may not use or access (nor facilitate or enable others to use or access) the developer website or Innovate MR Content in any way not expressly permitted under this Agreement. For example, you will not (nor will you facilitate or enable others to):
a. Distribute, publish, or allow access or linking to the Innovate MR API or Content from any location or source other than your Licensee Applications or any other part of your applications not explicitly approved by Innovate MR.
b. Enable or permit the disclosure of Content other than as authorized under this Agreement.
c. Use the Content to establish Innovate MR user identities or user profiles.
d. Commercialize (that is, sell, rent, trade or lease), copy or store the Content, other than for the intermediate purposes allowed by this Agreement;
e. Use, copy, distribute or modify the Innovate MR API or Content in any “service bureau” or “timesharing” business;
f. Collect Personal Information from an Innovate MR user, the Innovate MR API or the developer’s website, other than as provided in this Agreement.
g. Licensee is not permitted to use the Licensed Materials in any manner that does or could potentially undermine the security of the Innovate MR Services or the Licensed Materials. In addition, Licensee shall not (nor shall attempt to), interfere with, modify or disable any features, functionality or security controls of the Innovate MR Services or the Innovate MR API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Licensed Materials, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Innovate MR Services, the Content or the Innovate MR API.
h. Use robots, spyders, scraping or other technology to access or use Content or any developer website or services to obtain any information beyond what Innovate MR provides to you under this Agreement.
i. Knowingly create a Licensee Application or other application that may be used to violate this Agreement or any other Innovate MR policy or applicable law.
j. Use the Innovate MR API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage.
k. Have the Licensee Application or your use of Content or any of the developer website contain information or materials which: (i) are false, inaccurate or misleading; (ii) infringe on any third party’s copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy; (iii) violate any law, statute, ordinance, contract, regulation or generally accepted practice in all relevant jurisdictions (including without limitation those governing trade and export, financial services, consumer protection, unfair competition, antidiscrimination or false advertising); (iv) are defamatory, trade libelous, threatening or harassing; (v) contain any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or (vi) create liability for Innovate MR or cause Innovate MR to lose (in whole or in part) the services of our ISPs or other suppliers;
l. Provide any data or information to Innovate MR unless you represent and warrant that it is accurate and you have all rights necessary to provide such data or information to Innovate MR, and for Innovate MR to use it.
n. Obtaining and Maintaining an API Key. In order to use the Innovate MR API, Licensee must obtain API credentials (an “API Key”) via registration on the developer website. Licensee shall not share his or her API Key, shall keep such API Key secure and shall use it as Licensee’s sole means of accessing the Innovate MR API.
o. User Login. Licensee Applications shall present users with the ability to log into the Innovate MR Services through the Innovate MR API. Users without an account on the Innovate MR Services shall be presented with an opportunity to create such an account.
p. No Replication. Licensee shall not replicate products or services offered by Innovate MR.
q. No Marketplaces or Other Aggregators or Repositories of Code or Applications. Licensee is not permitted to create any sort of marketplace or other aggregator or public repository of code or applications the purpose of which is to collect items substantially based on the Licensed Materials, including Licensee Applications (a “Marketplace”), regardless of whether or not such Marketplace charges for such items. Such Marketplaces include, but are not limited to, collections of Innovate MR themes, collections of Innovate MR extensions or plugins and non-general purpose collections comprised solely of Licensee Applications. In addition, Licensee should not participate in such prohibited Marketplaces.
r. No Export for the Purpose of Replication, Repackaging or Resale. Licensee shall not, under any circumstances, export Content to a datastore intended to replicate, in whole or in part, Innovate MR’s datastore, nor shall Licensee repackage and/or resell the Licensed Materials, including any Content, in any manner, including but not limited to by offering access to the Licensed Materials through its own Innovate MR API. For the sake of clarity, this restriction is not intended to apply to Licensee Applications that may, at the request of a user, export such user’s Content for the purposes of data portability.
s. Reporting Security Flaws and Unauthorized Access. Licensee shall immediately report to Innovate MR any security flaws Licensee discovers in any of the Innovate MR Services or the Licensed Materials. Innovate MR reserves the right, in its sole discretion, to determine what constitutes a security flaw. Licensee shall further immediately report any actual or suspected unauthorized access to the Innovate MR API using Licensee’s API credentials. Failure to report such flaws or unauthorized accesses, particularly prior to public disclosure, shall be considered a material breach of this Agreement.
t. No Phishing, Malware or Identity Theft. Licensee shall not publish or link to malicious content intended to damage, disrupt or exploit a user’s browser, computer or Innovate MR account or to compromise a user’s privacy or credentials in any manner. In addition, Licensee shall not collect, or try to collect, a user’s Innovate MR credentials, including but not limited to usernames or passwords.
u. No Spamming. Licensee shall not use the Innovate MR Services or Innovate MR API, and shall not create Licensee Applications, for the purpose of “spamming.” Innovate MR reserves the right, in its sole discretion, to determine what actions constitute “spamming”.
v. Respect for API Limitations. Licensee shall respect the letter and the spirit of the programmatic limitations of the Innovate MR API and the restrictions of this Agreement in designing and implementing Licensee Applications. For example, Licensee shall not work around any explicit Innovate MR API limitation using a series of non-API calls, even if such work-arounds are possible by avoiding use of the Innovate MR API. In addition, Licensee shall comply with any limitations on the frequency of access, calls and use of the Innovate MR API as provided to Licensee by Innovate MR from time to time.
w. No Circumvention or Reverse Engineering; Maintenance of Proprietary Notices. Licensee shall not, and shall not attempt to: (i) interfere with, modify or disable any features or functionality of the Innovate MR Services or Innovate MR API, including, without limitation, any mechanisms used to restrict or control the Innovate MR Services or Innovate MR API, such as anti-circumvention measures; (ii) translate, reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Innovate MR Services or the Licensed Materials; (iii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Innovate MR Services or the Licensed Materials; or (iv) remove or modify any proprietary notices, attribution or marks from or delivered as part of the Innovate MR Services or the Licensed Materials.
x. Use of Innovate MR Marks. Licensee may not, under any circumstances: (i) include in or use the Innovate MR Marks, or any marks that are confusingly similar to or derivative of the Innovate MR Marks (including without limitation, Innovate MR)”) (“Confusing Marks”), as part of Licensee’s trade name (registered or otherwise), logos or other identifiers of Licensee; (ii) include in or use the Innovate MR Marks or any Confusing Marks as part of any names, domain names logos or other identifiers of Licensee Applications; or (iii) use the Innovate MR Marks or Confusing Marks in a manner that creates or may create a sense of endorsement, sponsorship or association with Innovate MR, unless expressly permitted by Innovate MR, in writing, to do so. All use of the Innovate MR Marks, and any goodwill arising out of such use, shall inure to the benefit of Innovate MR. Licensee may freely state and disclose that Licensee is using the Innovate MR Services or the Innovate MR API, as long as License adheres to all restrictions on the use of the Innovate MR Marks stated in this Agreement, and any other agreement among the parties.
y. Monitoring. Innovate MR reserves the right to monitor Licensee’s use of the Licensed Materials for any reason or no reason, including to ensure Licensee’s compliance with the terms and conditions of this Agreement.
Licensee acknowledges and agrees that Innovate MR may modify (including but not limited to updating) this Agreement, the Innovate MR Services, and the Innovate MR API, from time to time (a “Modification”). Except for modifications of the Innovate MR Services, Licensee will be notified a Modification through notifications or posts on the developer website or through a form of direct communication from Innovate MR to Licensee, including but not limited to e-mail or notifications through the Innovate MR Services. Licensee further acknowledges and agrees that the Innovate MR Services and the Licensed Materials may be modified at any time and without any notice to Licensee. Licensee shall, within thirty (30) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) comply with such modification(s) by implementing and using the most current version of the Innovate MR API and making any changes to Licensee Applications that may be required as a result of such Modification(s). Licensee acknowledges that a Modification may have an adverse effect on Licensee Applications, including but not limited to changing the manner in which Licensee Applications communicate with Innovate MR Services and display Content. Licensee acknowledges that its sole recourse for such adverse effects is to terminate this Agreement pursuant to Section 9, and that Licensee’s continued access to or use of the Innovate MR Services or any Licensed Materials following such thirty (30) day period shall constitute binding acceptance of the Modification(s) at issue. Innovate MR will attempt, but is not obligated, to provide thirty (30) days notice of any Modification that is not backwards compatible or that Innovate MR reasonably believes will remove or materially alter significant functionality of the Innovate MR API.
a. Innovate MR. Licensee acknowledges and agrees that Innovate MR and its licensors, particularly its users, retain all worldwide right, title and interest in and to the Licensed Materials, including all worldwide intellectual property rights therein. Licensee also acknowledges and agrees that, as between Licensee and Innovate MR, Innovate MR owns all right, title and interest in and to the Innovate MR Services, the Innovate MR API, the Innovate MR Marks, and any derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Licensee agrees not to act in any manner inconsistent with such ownership. Any of Innovate MR’s rights not expressly granted under this Agreement are withheld. Licensee agrees that it will not challenge Innovate MR’s ownership of the Innovate MR Marks, challenge the validity of the licenses granted under this Agreement, or otherwise copy or exploit the Innovate MR Marks during or after the termination of this Agreement, except as expressly authorized under this Agreement. If Licensee acquires any rights in the Innovate MR Marks or any confusingly similar marks, by operation of law or otherwise, Licensee will, at no expense to Innovate MR, immediately effectuate an assignment of such rights to Innovate MR.
b. Licensee. As between Licensee and Innovate MR, Licensee retains all worldwide right, title and interest in and to the Licensee Applications, excluding the Innovate MR Services, the Licensed Materials, the Innovate MR Marks, and any derivative works or enhancements thereof, including but not limited to all intellectual property rights therein.
c. Feedback. Licensee may provide Innovate MR with feedback or comments related to the Licensed Material and/or Licensee’s experience with and use thereof (“Feedback”). Licensee agrees that Innovate MR and its designees and assigns shall be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license, sublicense, incorporate and otherwise use Feedback, including all derivative works thereto, for any and all purposes, commercial or otherwise, with no obligation of any kind to Licensee.
b. Removal of Content. When Licensee has been notified of such through the Innovate MR API, Licensee will immediately, and in any case not later than twenty-four hours after notification, (including but not limited to by modifying applicable Licensee Applications): (i) delete or remove Content that has been deleted or removed from the Innovate MR Services; (ii) modify Content that has been modified on the Innovate MR Services; and (iii) change Licensee’s treatment of Content that has had its sharing options modified.
Licensee may from time to time, gain access to proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information that is either marked as “confidential” or disclosed in such a manner that it would be apparent it should be treated confidentially (“Confidential Information”). Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Licensee may not disclose Confidential Information to a third party without the prior express consent of Innovate MR, provided in writing or by email. Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
9. Term and Termination; Survival.
This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Innovate MR, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the Licensed Materials and any Confidential Information in Licensee’s possession, and shall certify to Innovate MR that such actions have occurred. Sections 3, 5, 6, 8, 9 and 11-14 shall survive termination of this Agreement.
10. Representations and Warranties of Licensee.
Licensee represents and warrants that: (i) Licensee has the necessary power and authority to enter into this Agreement, and that the performance of its obligations will not constitute a breach or otherwise violate any other Agreement or the rights of any third party arising therefrom; (ii) Licensee shall maintain, throughout the Term, all required rights and licenses related to the Licensee Applications and the Licensee Applications shall not infringe or otherwise violate any third party rights, including but not limited to third party intellectual property rights; and (iii) Licensee’s uses of the Licensed Materials do and shall comply with all applicable foreign, federal, state and local laws, rules and regulations.
11. Indemnification by Licensee.
Licensee will indemnify and hold Innovate MR, its subsidiaries, affiliates, officers, employees and agents harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs and expenses brought by a third party arising out of or in connection with: (i) any act or omission by Licensee in connection with Licensee’s use of the Innovate MR Services or the Licensed Materials; (ii) Licensee’s use of the Innovate MR Services or the Licensed Materials other than as expressly allowed by this Agreement; (iii) Licensee’s breach of this Agreement, including but not limited to Licensee’s representations and warranties herein; or (iv) any Licensed Application.
The Innovate MR Services and the Licensed Materials are provided “as is” without warranty of any kind. Innovate MR disclaims all warranties, whether express, implied or statutory, regarding the licensed materials and the Innovate MR services, including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, interference with quiet enjoyment, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Further, Innovate MR disclaims any warranty that Licensee’s use of the Innovate MR Services or the Licensed Materials will meet any or all of Licensee’s requirements or that such use will be uninterrupted, error-free, virus-free or secure. Some states do not allow the exclusion or limitation of implied warranties, so the above limitations and exclusions may not apply to you.
13. Limitation of Liability.
In no event shall Innovate MR be liable to Licensee for any special, incidental, indirect, direct, exemplary, punitive, compensatory or consequential damages (including loss of use, data, business or profits) arising out of or in connection with this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not Innovate MR has been advised of the possibility of such loss or damage. Any claim arising our of or relating to this Agreement must be brought within one (1) year. In any case, Innovate MR’s aggregate liability under this Agreement will not exceed TWO HUNDRED AND FIFTY DOLLARS U.S. dollars (US$250.00). The foregoing limitations will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.