1. Trademark License
In performing its obligations under and in accordance with the Agreement, CrunchBase grants to Company a limited, non-exclusive, non-transferable (except as otherwise provided herein), royalty-free license to use the trade names, trademarks, and service marks of CrunchBase provided by CrunchBase to Company; and Company grants to CrunchBase and CrunchBase Affiliates a limited, non-exclusive, non-transferable (except as otherwise provided herein), royalty-free license to use the trade names, trademarks, and service marks of Company provided to CrunchBase and any third party tradenames, trademarks and service marks provided by Company to CrunchBase (collectively, together with the CrunchBase marks listed above, the “Marks”); provided that each Party: (i) does not create a unitary composite mark involving a Mark of the other Party without the prior written approval of such other Party; (ii) displays symbols and notices clearly and sufficiently indicating the trademark status and ownership of the other Party’s Marks in accordance with applicable trademark law and practice; and (iii) complies with all written guidelines provided to it by the other Party related to use of the other Party’s Marks. Each Party acknowledges the ownership right of the other Party in the Marks of the other Party and agrees that all use of the other Party’s Marks will inure to the benefit, and be on behalf, of the other Party. Each Party acknowledges that its utilization of the other Party’s Marks will not create in it, nor will it represent it has, any right, title, or interest in or to such Marks other than the licenses expressly granted herein. Each Party agrees not to do anything contesting or impairing the trademark rights of the other Party. Each Party agrees that the nature and quality of its products and services supplied in connection with the other Party’s Marks will conform to quality standards set by the other Party for use of its trademarks. Each Party agrees to supply the other Party, upon request, with a reasonable number of samples of any Materials publicly disseminated by such Party which utilize the other Party’s Marks. Each Party will comply with all applicable laws, regulations, and customs and obtain any required government approvals pertaining to use of the other Party’s Marks. Each Party agrees to promptly notify the other Party of any unauthorized use of the other Party’s Marks of which it has actual knowledge. Each Party will have the sole right and discretion to bring proceedings alleging infringement of its Marks or unfair competition related thereto; provided, however, that each Party agrees to provide the other Party with its reasonable cooperation and assistance with respect to any such infringement proceedings.
2. Representations and Warranties
Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the term of this Agreement, and for a period of three (3) years following expiration or termination of this Agreement, to prevent the disclosure of Confidential Information of the other Party, other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of the other Party, solely to the extent such disclosure is required by law, rule, regulation or government or court order or as reasonably advised by legal counsel. In such event, the disclosing Party will provide at least five (5) business days prior written notice of such proposed disclosure to the other Party. Further, in the event such disclosure is required of either Party under the laws, rules or regulations of the Securities and Exchange Commission or any other applicable governing body, such Party will (i) redact mutually agreed-upon portions of this Agreement to the fullest extent permitted under applicable laws, rules and regulations and (ii) submit a request to such governing body that such portions and other provisions of this Agreement receive confidential treatment under the laws, rules and regulations of the Securities and Exchange Commission or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body. Upon the expiration or termination of this Agreement, each Party shall, upon the written request of the other Party, return or destroy (at the option of the Party receiving the request) all Confidential Information, documents, manuals and other materials specified by the other Party. As used herein, “Confidential Information” shall mean a ny information relating to or disclosed in the course of the Agreement, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing Party, including, but not limited to, the material terms of this Agreement, information about CrunchBase users, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data. “Confidential Information” shall not include information (a) already lawfully known to or independently developed by the receiving Party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.
4. Limitation of Liability
(a) Limitation of Liability. EXCEPT AS SET FORTH IN CLAUSES (X) AND (Y) OF THIS SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, THE SALE OF PRODUCTS, THE USE OF OR INABILITY TO USE ANY CrunchBase CONTENT, PRODUCT, SERVICE OR PROPERTY, OR ANY COMPANY CONTENT, PRODUCT, SERVICE OR PROPERTY OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”). IN ADDITION, SUCH LIABILITY BETWEEN THE PARTIES (A) WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, (B) EACH CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE CAPPED AT THE AGGREGATE AMOUNTS PAYABLE HEREUNDER WITHIN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM OR $100,000, WHICHEVER IS MORE, AND (C) THE AGGREGATE FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE CAPPED AT THE AGGREGATE AMOUNTS PAYABLE HEREUNDER WITHIN ANY CONTRACT YEAR (I.E., EACH SUCCESSIVE TWELVE (12) MONTH PERIOD BEGINNING WITH THE EFFECTIVE DATE) OR $100,000, WHICHEVER IS MORE. NOTWITHSTANDING THE FOREGOING, (X) EACH PARTY SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DISCLAIMED DAMAGES, ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION BELOW, AND (Y) EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS OF THIS AGREEMENT.
(b) No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY CONTENT, PRODUCT SERVICE OR PROPERTY PROVIDED BY ONE PARTY TO THE OTHER PARTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CrunchBase SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING PROFITABILITY OF THE AGREEMENT TO COMPANY.
(c) Indemnity. Each Party will defend, indemnify, save and hold harmless the other Party and the officers, directors, agents, affiliates, distributors, franchisees and employees of the other Party from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees resulting from the Indemnifying Party’s (as defined below) material breach or alleged breach of any obligation, representation, or warranty of this Agreement.
(d) Indemnity Procedure. If a Party entitled to indemnification hereunder (the “Indemnified Party”) becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party shall give the other Party (the “Indemnifying Party”) prompt written notice of such Action. Such notice shall (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party shall have a period of ten (10) days after delivery of such notice to respond. If the Indemnifying Party elects to defend the Action or does not respond within the requisite ten (10) day period, the Indemnifying Party shall be obligated to defend the Action, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such Action. If the Indemnifying Party responds within the required ten (10) day period and elects not to defend such Action, the Indemnified Party shall be free, without prejudice to any of the Indemnified Party’s rights hereunder, to compromise or defend (and control the defense of) such Action. In such case, the Indemnifying Party shall cooperate, at its own expense, with the Indemnified Party and its counsel in the defense against such Action and the Indemnifying Party shall have the right to participate fully, at its own expense, in the defense of such Action. Any compromise or settlement of an Action shall require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
(e) Acknowledgment. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between the Parties of all risks (both known and unknown) associated with the transactions contemplated hereunder. The limitations and disclaimers related to warranties and liability contained in this Agreement are intended to limit the circumstances and extent of liability. The Parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement. The provisions of this paragraph will be enforceable independent of and severable from any other enforceable or unenforceable provision of this Agreement.
(a) Force Majeure. Neither Party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any external causes or conditions which are beyond such Party’s reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence. In the event that a Party intends to invoke this force majeure provision, such Party shall provide prompt notice to the other Party as soon as possible after the occurrence of the event giving rise to the claim of force majeure. If any force majeure event continues for a period of thirty (30) days or more or when it is agreed by both Parties that such an event will continue for longer than thirty (30) days from the day it started, the Party who is not receiving performance hereunder because of the force majeure event shall have the right to terminate this Agreement without liability (except for the accrued rights and obligations of the parties) upon giving five (5) business days written notice to the other Party.
(b) Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
(c) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by confirmed facsimile and followed up delivery by mail; (ii) on the delivery date if delivered personally to the Party to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five business days after the mailing date, whether or not actually received, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. In the case of CrunchBase , unless otherwise set forth in the Agreement, such notice will be provided to <a href=”mailto:email@example.com”firstname.lastname@example.org, each at the address of CrunchBase set forth in the first paragraph of this Agreement. In the case of Company, except as otherwise specified herein, the notice address shall be the address for Company set forth in this Agreement, with the other relevant notice information, including the recipient for notice and, as applicable, such recipient’s fax number, to be as reasonably identified by CrunchBase.
(d) No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
(e) Survival. Sections 2, 3, 4 and 5 of this Exhibit, and any payment obligations accrued prior to termination or expiration, and any other provision which by its nature should survive or which the Parties have agreed herein should survive, will survive the completion, expiration, termination or cancellation of this Agreement.
(f) Entire Agreement. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
(g) Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the Party subject to enforcement of such amendment.
(h) Further Assurances. Each Party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by the other Party for the implementation or continuing performance of this Agreement.
(i) Assignment. Company shall not assign, delegate or transfer this Agreement or any right, interest or benefit under this Agreement, or allow this Agreement to be assumed by, any third party without the prior written consent of CrunchBase and any such assignment, delegation, transfer or assumption without CrunchBase’s prior consent shall be wholly void and invalid. Notwithstanding the foregoing, without the consent of AOL , Company may assign this Agreement to an Acquiror of Company, or allow this Agreement to be assumed by such Acquiror so long as: (a) Acquiror agrees to be fully bound by the terms and conditions set forth in this Agreement, (b) Company is not released from liability for full performance of its obligations hereunder, (c) Acquiror has the necessary financial and other resources necessary to fully perform Company’s obligation hereunder, and (d) Acquiror is not an Interactive Service and does not control, is not controlled by or is not under common control with an Interactive Service. CrunchBase may transfer its rights and obligations under this Agreement, without obtaining Company’s consent, to any Acquiror of AOL or to a CrunchBase Affiliate, and in the event of any such transfer and/or the assumption by the transferee of the obligations of CrunchBase hereunder, CrunchBase will be released from any further liability or obligation under this Agreement. As used herein, “Acquiror” shall mean a third party that acquires all or substantially all of the outstanding capital stock of a Party or a third party that purchases all or substantially all of the assets and on-going business of a Party. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and assigns.
(j) Construction; Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
(k) Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the Party may possess at law or in equity; provided that, in connection with any dispute hereunder, Company will be not entitled to offset any amounts that it claims to be due and payable from CrunchBase against amounts otherwise payable by Company to CrunchBase.
(l) Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the Commonwealth of Virginia except for its conflicts of laws principles. Each Party irrevocably consents to the exclusive jurisdiction, forum and venue of the Circuit Court of Loudoun County, Virginia, and the United States Circuit Court for the Eastern District of Virginia (Alexandria Division) over any and all claims, disputes, controversies or disagreements between the Parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to this Agreement or any document executed pursuant to this Agreement or any of the transactions contemplated hereby.
(m) Export Controls. Each Party shall fully comply with all applicable import and export control laws, regulations, rules and orders of the United States and any foreign jurisdiction. No Party shall, without first obtaining written authorization from the United States and/or foreign government: (i) export, re-export, release or transfer, directly or indirectly, (collectively, “Export”) any commodities, software or technology, including any direct products thereof (collectively, “Items”) to any proscribed country, entity or person (wherever located) (collectively, “Proscribed Entities”) or for any proscribed end-use, or (ii) enter into any transactions with any Proscribed Entity or for any proscribed end-use. Each Party hereby agrees to assume all responsibility for, and to bear all expenses relating to, such Party’s compliance with the described laws, regulations, rules and orders, and for obtaining all necessary government authorizations and clearances in relation thereto.
(n) Headings. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Signatures sent by facsimile shall be deemed original signatures.