Anti-Piracy Terms and Conditions

Customer agrees and acknowledges the following "Terms and Conditions" which apply to Customer ("Customer "or "You") for each use of any services available through the MarkMonitor website.

Services/Projects/Titles:  MarkMonitor agrees to provide Anti-Piracy, Security and Business Intelligence Services under the terms and conditions of this agreement and as described in any applicable Estimate.

Payment Terms. Payments shall be made within thirty (30) days after Customer’s receipt of invoice. 

Term. Unless otherwise agreed in writing, the term of the Services shall be for a one year period and continue on a month-to-month basis thereafter, unless terminated in writing by a party.

Data. MarkMonitor shall maintain back-up copies of the evidence for as long as reasonably requested in writing by Customer as allowed by the applicable laws.  Data will be supplied to Customer by email, on DVD or as otherwise requested by Customer.  MarkMonitor ensures that the transport of evidence is done in a manner approved by both Parties. MarkMonitor agrees to process and use the Data solely for the purposes set forth in this Agreement. 

Intellectual Property Rights

Ownership of Titles and Infringing Copies Thereof:  As between Customer and MarkMonitor, all right, title and interest in and to the Titles, and any elements thereof, shall remain with Customer.

Ownership of Technology: Customer acknowledges and agrees that, as between the parties, MarkMonitor holds all right, title and interest in and to any technology and software used by MarkMonitor in providing the Services (subject to any third party rights or restrictions), including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto.

Ownership of Data: As between Customer and MarkMonitor, Customer shall have the ownership to the Data, including all reports prepared by MarkMonitor pursuant to this Agreement. In relation to all Personal Information made available to MarkMonitor by Customer or which MarkMonitor processes on behalf of Customer under this agreement, MarkMonitor shall comply with the applicable data protection laws and regulations.

Unauthorized Use of Services. Customer is responsible for the use of the Services by any employee of Customer, any person to whom Customer have given access to the Services, and any person who gains access to Customer's data or the Services as a result of Customer's failure to use reasonable security precautions, even if such use was not authorized by Customer.  Customer agrees to assume sole responsibility for the security of any and all passwords issued by MarkMonitor for purposes of accessing the data provided under this Agreement, and shall promptly notify MarkMonitor of the loss or theft of any password.

Confidentiality

  1. For the purposes hereof, “Confidential Information” is any information disclosed to the other Party whether orally or in writing that is either nonpublic, confidential or proprietary in nature, which may include (i) information relating to the financial marketing, organizational and trading position of the applicable Party including any details of industry, customers, suppliers, advertisers, debtors or creditors, (ii) technical information relating to any product or service supplied by the applicable Party, (iii) information relating to intellectual property rights in respect of the applicable Party, (iv) information relating to the officers, directors or employees of the applicable Party including their terms and conditions of employment or engagement, or (v) any other information which may from time to time be identified by the applicable Party as being of a confidential nature and as being subject to the terms of this Agreement.  Confidential Information shall include Data, as well as the prices and terms of this Agreement.
  2. Each of the Parties shall: (i) utilize the other Party’s Confidential Information exclusively for the purpose of this Agreement, and (ii) not disclose the other Party’s Confidential Information to any person other than: (a) the applicable Party’s directors and officers or other employees whose knowledge of such information is appropriate for the said purposes, (b) any professional advisers acting on the applicable Party’s behalf in connection with the said purposes, (c) any representative of any financial institution or investor as part of the "due diligence" in connection with any potential loan, investment, merger or acquisition, or (d) any other person approved in writing by the disclosing Party.
  3. It is accepted by the Parties that nothing contained in this Agreement shall in any way restrict either of the Parties’ right to use, disclose or otherwise deal with any of the Confidential Information which (i) is rightfully obtained by the receiving Party without breach of any obligation to maintain its confidentiality; (ii) is or becomes known to the public through no act or omission of the receiving Party; (iii) the receiving Party develops independently without using the Confidential Information of the other Party; (iv) was in the Recipient's possession prior to its being disclosed; or (v) is disclosed in response to a valid court or governmental order if the receiving Party has complied with the requirements set forth in Section 10.D.
  4. In the event that a Party receives a request or demand, by subpoena or otherwise, from any person or by court or governmental order that appears to call for the disclosure or production of any Confidential Information, such Party shall, in addition to preserving and invoking all applicable privileges, immunities and protections as required by this Agreement, immediately notify, unless prohibited by law, the other Party of such request and shall not voluntarily surrender or disclose any Confidential Information without first providing, to the extent legally permissible, the other Party a reasonable opportunity to protect its interests in an appropriate court, or in such other manner as may be appropriate having regard to the nature and source of the request or demand.  Each Party shall take all steps necessary to permit the assertion of all applicable rights and privileges with respect to all Confidential Information and will cooperate fully with the other Party to this Agreement in any judicial proceeding relating to the disclosure of Confidential Information.  Nothing in this Agreement shall require any Party or representative thereof to go into contempt of court for violating a court order.

Termination

  1. Termination for Cause by Either Party:  This Agreement may be terminated by either party if the other party is in breach of any of its material obligations contained herein and such breach is not reasonably cured by the breaching party within thirty (30) days of receipt of written notice of an alleged breach. 
  2. By MarkMonitor: MarkMonitor may terminate this Agreement or, at its option, the applicable SOW  immediately upon notice to Customer,if it is advised by competent outside counsel through a legal opinion of such counsel that (i) the provision of any or all of the such Services will be rendered illegal as a result of legislation or a regulation then in effect or (ii) MarkMonitor is at risk of being sued by a third party as a result of its provision of any of such Services. 
  3. By Customer: Customer may immediately terminate this Agreement if Customer is advised by competent outside counsel through a legal opinion of such counsel that (i) the provision of any or all of the Services will be rendered illegal as a result of legislation or a regulation then in effect or (ii) Customer is at risk of being sued by a third party in connection with the Services or the Agreement.

Indemnification. MarkMonitor shall defend, indemnify and hold harmless Customer, its affiliates, and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) MarkMonitor’s intentional or gross negligence or willful misconduct relating to the terms of this Agreement or the Services provided hereunder; or (ii) any claim that the Services infringe any U.S.  patents, trade secrets, copyrights, trademarks or any other rights, including privacy rights, of any third party.  MarkMonitor’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.

Customer shall defend, indemnify and hold harmless MarkMonitor, its affiliates and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) Customer’s intentional or grossly negligent misrepresentation of fact or data relating to the terms of this Agreement or the Services provided hereunder; (ii) any claim that the materials or records supplied to MarkMonitor by Customer infringe any U.S.  copyright, trademark, patent or trade secret rights of any third party on account of the use or possession of said materials or records by MarkMonitor as contemplated within the course and scope of MarkMonitor Services under this Agreement; or (iii) any claim arising from MarkMonitor undertaking any action contemplated within the course and scope of the Services under this Agreement.  Customer’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.

If either Party receives notice of a claim that is covered by this Section, such notice must be promptly forwarded to the financially responsible Party.  The Party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible Party.  The Party against whom the claim is made may not settle the claim without the consent of the financially responsible Party, although such consent may not be unreasonably withheld.

Miscellaneous

Governing Law. The Agreement is governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America. 

Notices. Notices hereunder regarding any non-routine legal matter (such as breach, indemnification, termination or arbitration)  shall be in writing and deemed sufficient and received if delivered in person or when sent via pre-paid overnight courier or Certified Mail, to the address of the party set forth in the Estimate or Order.

No Waiver of Breach:  Any waiver, express or implied, or any other failure to exercise a right (including any termination right) or insist on a condition, by either Customer or MarkMonitor with respect to any breach of any of the provisions of this Agreement shall not operate as a waiver of such right or as a waiver in respect of any subsequent breach of any of the provisions of this Agreement.

Force Majeure:  Neither Party will be responsible for delays or failure to perform its respective duties and obligations hereunder when those delays or failures result from reasons outside its reasonable control (a “Force Majeure”).  Each Party shall notify the other as soon as practicable of the occurrence of any such Force Majeure and shall continue to make commercially reasonable efforts to comply with the terms of this Agreement.  The time for performance of this Agreement shall be extended for a period equal to the duration of any such Force Majeure.

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