(Last Updated – May 1, 2022)
- Program; Website. Upon payment of the fees described in each SOW and subject to the terms set forth herein, Client is hereby included as a participant in the Street Fight Thought Leadership Program (the “Program”), as it may be amended or modified by Localogy from time to time. Localogy will: (i) make the Website available to Client on a revocable, non-exclusive, non-transferable, non-sublicensable license basis solely for the purposes described in the SOW and as otherwise described on the Website from time to time; and (ii) host, or engage one or more third parties to host, the back end of the Website in accordance with Localogy’s customary practice. For purposes of this Agreement, “Website” shall mean Street Fight’s website located at www.streetfightmag.com or at any successor URL Localogy may use to operate the Website from time to time.
3. Fees; Expenses. In consideration for participation within the Program and associated access to the Website, Client shall pay to Localogy the fees specified in the SOW at the times specified in the SOW. Client and Localogy may separately agree to other services not described in the SOW, the fees for which shall be as set forth in the separate written agreement governing the provision of such services. To the extent Client provides any credit card to Localogy, whether via the Website or via any other means of communication, Localogy shall be entitled to charge such credit card for all fees due and owing as set forth herein and within the SOW (such authorization to extend until such time as Client cancels such authorization in writing to Localogy or otherwise terminates this Agreement in accordance with the terms set forth herein). Fees, once paid, are non-refundable. Fees which are not timely paid shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 15% per annum or the maximum rate permitted by applicable law. Client may not offset or withhold fees due under this Agreement for any reason, and Client agrees to reimburse Localogy for all reasonable costs (including attorney’s fees) incurred in collecting past due fees owed by Client.
4. Term. This Agreement shall run for the period set forth in the SOW, and renew as set forth within the SOW. Either party shall be entitled to terminate this Agreement at any time in the event the other party (i) declares bankruptcy, or (ii) breaches any of its material obligations hereunder (including, without limitation, payment obligations) and fails to cure such breach within 30 days from the date of receipt of written notice of such breach. Upon any termination of this Agreement, Client shall promptly pay all fees and reimburse Localogy for all expenses due and owing hereunder. Sections 2 through 13 of this Agreement shall survive any termination of this Agreement.
5. Intellectual Property.
- Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. Localogy shall retain sole ownership over the Program, the Website and all software and/or other intellectual property utilized by Localogy hereunder (including, without limitation, any improvements or enhancements which occur at any time), and no license or other rights to any such software are conferred on Client hereunder. All suggestions, recommendations, bug-fixes, error-fixes or other communications from Client to Localogy regarding the Program or Website shall, upon submission to Localogy, be owned solely and exclusively by Localogy. In exchange for your participation in the Program and use of the Website, you hereby grant to Localogy an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform, and display any and all Submissions, alone or as part of other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees. You irrevocably waive, and cause to be waived, against Localogy and its users any claims and assertions of moral rights or attribution with respect to each Submission. Localogy shall be entitled to display advertising and/or any other content at locations of its choosing within the Website, including without limitation adjacent to one or more Submissions, with no obligation to remit any fee or other consideration to you in connection therewith. While Localogy is entitled to review, modify, or reject each Submission in its sole discretion, it is not required to do so. Localogy shall have sole discretion in determining where sponsored Submissions shall be displayed within the Website, and in modifying or changing the Website from time to time.
- Restrictions. Client shall not directly or indirectly reproduce all or any portion of the Website, including, but not limited to, the copying of presentation, style or organization. Client shall use the Website solely for its intended purposes and shall not use the Website for the benefit of any third party except as specifically contemplated under this Agreement. Client will not use the Website: (a) in violation of any applicable law; (b) such that any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information are entered into the Website; or (c) in violation of the any acceptable use policy or other policy posted at the Website or otherwise made available to Client from time to time. Client shall be solely responsible for: (i) ensuring that each of Client’s permitted users within its business complies with the terms set forth herein; and (ii) maintaining all passwords and access codes to the Website and/or Program and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes.
6. Confidentiality. Client agrees to treat as confidential all non-public information of Localogy, not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, Client shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by Localogy, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. It is agreed and understood that Localogy shall be entitled to list Client as a participant within the Program on the Website, affiliated websites and/or in marketing materials.
7. Disclaimer. Except as explicitly set forth herein, Localogy, together with Localogy’s employees, affiliates, agents, suppliers, licensors and the like, does not make any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website will be error-free, (c) as to a minimum level of operability or uptime for the Website, (d) as to any level of security, (e) as to the actions of any third party, or (f) as to the business results that may be obtained by Client by entering into this Agreement. Client is responsible, at Client’s sole cost and expense, for providing all equipment necessary to load and/or use the Website. While it is Localogy’s objective to make the Website accessible at all times, the Website may be unavailable from time to time for any reason including, without limitation, routine maintenance and/or bugs within the Website.
8. Limitation on Liability. EXCLUDING CLIENT’S INDEMNIFICAITON OBLIGATIONS SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF STREET FIGHT TO CLIENT FOR ANY CLAIM HEREUNDER, RELATING TO THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE FEES PAID TO STREET FIGHT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE. CLIENT SHALL REMAIN SOLELY RESPONSIBLE FOR THE CONTENT OF EACH SUBMISSION, AND AS SUCH, CLIENT AGREES TO DEFEND AND INDEMNIFY STREET FIGHT FROM AND AGAINST ALL CLAIMS ARISING OUT OF ANY SUBMISSION, INCLUDING WITHOUT LIMITATION ANY CLAIM ALLEGING THAT ANY SUBMISSION, OR PORTION THEREOF, INFRINGES A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. Force Majeure. Excluding payment obligations hereunder, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, pandemic, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power.
10. Governing Law. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of California, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by the appropriate court located solely and exclusively in Anaheim, California. Client agrees to such exclusive jurisdiction in San Diego County, California, and waives any jurisdictional claims in respect thereto (including, without limitation, forum non conveniens). In any such proceeding, the substantially prevailing party shall be entitled to reimbursement by the non-prevailing party for all attorneys’ fees expended in such matter.
11. Non-Solicitation. During the term of this Agreement and for a period of 1 year following the termination of this Agreement for any reason, Client shall not, either directly or indirectly, solicit or hire any employee of Localogy or any individual that was an employee of Localogy at any time during the 1-year period immediately preceding the date of proposed hire.
12. Usage of Website. The following terms and conditions govern general use of the Website:
- a. Permitted Uses. Client may use the Website only in good faith for the purposes described herein. Client may not use the Website to promote another business or commercial venture.
- b. Distribution. Except as expressly permitted under other provisions of this Agreement, Client may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any content within the Website.
- Derivative Works. Client may not create compilations or derivative works of the Website content.
- Infringement. Client may not use the Website or any other materials from the Website in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of Localogy or any third party.
- c. Other Prohibited Uses. Client may not use the Website for any purpose that:
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or otherwise violates Localogy’s rules or policies;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
- invades any person’s or entity’s privacy or other rights;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- misidentifies Client or impersonates any person or entity, including, without limitation, any employee or representative of Localogy, or falsely states, implies, or otherwise misrepresents Client’s affiliation with a person or entity by, for example, pretending to be someone other than Client or pretending to represent a company or organization that Client is not affiliated with or authorized to represent; or
- could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
- d. Harm to Minors. Client may not take any action in connection with the Website to harm minors in any way.
- e. Solicitation. Client may not use the Website in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
13. Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Localogy shall be entitled to amend, modify or terminate the Program at any time. Localogy shall be entitled to subcontract various of the services to be performed hereunder to third parties. This Agreement, together with each SOW, supersedes all prior written or oral agreements between the parties regarding the subject matter hereof (including any contradictory or additional language in any purchase order). Client shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Localogy’s income derived hereunder. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by Client other than to an entity acquiring substantially all of its business and assuming all of its obligations. Localogy shall be entitled to amend or modify this Agreement at any time by posting an updated version of this Agreement at the Website. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.