Sample Contract

(Contract can be downloaded at the bottom)

THIS AGREEMENT (''Agreement'') made as of the                  day of                                   , 2011 between <<COMPANY>>, a <<ENTITY TYPE>>organized under the laws of the State of <<STATE>>, having an address at <<ADDRESS>> (“<<COMPANY>>”) and <<CLIENT>>, an organization having an address at                                                                                                                   (“<<COMPANY>> Client”, “You” or “Your”).  <<COMPANY>> offers a unique mobile marketing platform which allows <<COMPANY>> Clients the ability to contact customers or clients via digital devices and media including, but not limited to, mobile telephone, email and social media websites (the “Platform”) utilizing certain methods, designs, processes, software and equipment (the “Technology”).  <<COMPANY>>’s services and features include but are not limited to mobile promotion, mobile polling, mobile messaging and alert services and reporting (collectively “<<COMPANY>> Services”).  <<COMPANY>> periodically updates features and adds new ones depending on market conditions and other factors.  Generally, all <<COMPANY>> Clients can access and use these features as part of their marketing efforts.

SECTION 1:  GRANT OF LICENSE

 

1.1          Limited Access to Platform/<<COMPANY>> Webpage.  The non-exclusive license contemplated under this Agreement shall grant <<COMPANY>> Client limited access to the Platform via a website interface page (“<<COMPANY>> Webpage”), wherein, <<COMPANY>> Clients can establish and manage accounts according to the capabilities of the Platform (the “License”).  <<COMPANY>> will train <<COMPANY>> Client personnel on how to utilize, manage and maintain the <<COMPANY>> Webpage in accordance with this Agreement.  During the Term of this Agreement, <<COMPANY>> will provide ongoing system support to <<COMPANY>> Client.     

 

1.2          <<COMPANY>> Client License.  During the Term of this Agreement, <<COMPANY>> Client hereby grants to <<COMPANY>> a non-exclusive, non-sublicensable (except to affiliates or subcontractors of <<COMPANY>> performing services with respect to such services), royalty-free, worldwide license to reproduce, distribute, store, transmit, publicly perform, publicly display, digitally perform, reproduce, and otherwise use the content of the <<COMPANY>> Webpage and user data in conjunction with the <<COMPANY>> Services.

 

1.3          Keywords/Data.  Nothing in this Agreement shall be construed to grant <<COMPANY>> Client ownership of any keywords utilized.  <<COMPANY>> may revoke the right to utilize any keyword at any time and for any reason and shall have the right to grant the utilization of any keyword to any third party.  The owner of the Short Code (defined below) associated with the <<COMPANY>> Services, any and all data generated by <<COMPANY>> Client and any customers/clients of <<COMPANY>> Client, any and all data provided to <<COMPANY>> on behalf of <<COMPANY>> Client and customers/clients of <<COMPANY>> Client, and any information stored by <<COMPANY>> on behalf of <<COMPANY>> Client or any of its customers/clients, including, but not limited to, any telephone numbers and e-mail addresses, shall remain the property of the Short Code owner.  

 

1.4          The Platform “As Is” and “As Available”.  Nothing under this Agreement shall be construed to require <<COMPANY>> to modify the Platform and/or Technology in any way nor customize/create any specific additions to the Platform and/or Technology on behalf of <<COMPANY>> Client.  <<COMPANY>> Client acknowledges and agrees that they are licensing the use of the Platform and/or Technology “AS IS” and “AS AVAILABLE” in its present state and with its present capabilities.  <<COMPANY>> may provide any updates made to the Platform in the normal course of business but shall not be obligated to create any specific updates in connection with this Agreement.  Subject to the terms and conditions of this Agreement, <<COMPANY>> will make its best efforts to maintain an uptime of 99% throughout the Term of this Agreement but cannot guarantee any specific uptime. 

                                               

1.5          Data Storage.  <<COMPANY>> will make its best efforts to backup all data to prevent data loss but cannot guarantee that no data will be lost.  <<COMPANY>> will not be responsible for any loss of data in connection with the License contemplated by this Agreement.     

 

1.6          Term.  Unless sooner terminated in a manner herein provided, this Agreement and/or the licenses granted hereunder shall commence on the date this Agreement is fully executed by the parties and continue in force until                                                                                    (the “Expiration Date”). 

 

SECTION 2:  FEES

 

2.1          Licensing Fees.  In consideration for the rights and licenses granted by <<COMPANY>> to <<COMPANY>> Client under this Agreement, <<COMPANY>> Client shall pay <<COMPANY>> a license fee in United States Dollars (the "License Fee") as follows:

 

 

 

<<Fee Structure>>

 

2.2          Time of License Fee Payments.  Unless otherwise specified within this Agreement, <<COMPANY>> will bill <<COMPANY>> Client on the first business day of each month, starting on the day of credit card authorization by <<COMPANY>> Client.  <<COMPANY>> Client will, at all times, provide and maintain a valid credit card and must update <<COMPANY>> in the event there is a change in any required information.  By signing this Agreement, <<COMPANY>> Client hereby authorizes <<COMPANY>> to forward this Agreement to any third party for the purposes of evidencing <<COMPANY>> Client’s authorization to charge the credit card in accordance with this Agreement.  <<COMPANY>> Client shall be responsible for any monies owed to <<COMPANY>> by any customer/client of <<COMPANY>> Client. 

 

2.3          SMB Rate Card.  <<COMPANY>> may change the SMB Rate Card from time to time.  In the event <<COMPANY>> wishes to effectuate a rate change in the SMB Rate Card, it will provide <<COMPANY>> Client thirty (30) days written notice of its intention to change the SMB Rate Card and will provide <<COMPANY>> Client with the new rates.

 

SECTION 3:  LICENSEE COVENANTS AND RESTRICTIONS

 

3.1          License Purpose.  <<COMPANY>> Client acknowledges and agrees that the purpose of this license is to be used only for providing <<COMPANY>> Client the ability to offer mobile telephone couponing and mobile telephone messaging services directly to customers/clients of <<COMPANY>> Client.  You may not use the Platform or Technology for any other purpose, nor may You link, compile or otherwise combine the Platform and/or Technology with any other programs, modify, rent, release, lend, sublicense or otherwise redistribute the Platform and/or Technology, in whole or in part, to any other person or entity.

 

3.2          No Reverse Engineering/Transfer.  You shall not, under any circumstances, create or permit others to create, by reverse engineering or otherwise, the Platform and/or Technology or any part thereof during the Term of this Agreement or at any time thereafter.  You may not rent, lease, lend, sell, redistribute or sublicense the License contemplated under this Agreement, nor any use relating to the Platform and/or Technology.

 

3.3          Covenants.  You shall not distribute on the <<COMPANY>> Webpage or provide to <<COMPANY>> or <<COMPANY>>’s employees, independent contractors, licensors/licensees or the owner of the Short Code any content or any other text, pictures, sound, graphics, video and other data or any other materials that: (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, Trojan horses, worms, trap doors, back doors, Easter eggs, 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.

 

3.4          Short Code.  You acknowledge that the maintenance and preservation of the designated numeric code utilized by <<COMPANY>>, <<COMPANY>>’s employees, independent contractors and/or licensors/licensees (hereinafter “Short Code”) is of the utmost importance to <<COMPANY>> and the owner of the Short Code.  You acknowledge further that any misuse by You or by Your customer/client would result in irreparable harm to <<COMPANY>> and the owner of the Short Code.  You covenant and agree to refrain from, and make all available efforts to prevent any of Your customers/clients and/or any other entities or individuals from, the following activities utilizing the Short Code:

                (i)            sending any transmissions to any person or entity without receiving the prior consent of the person or entity;

                (ii)           sending any transmissions to any person or entity without first receiving an “Opt-In” communication from the person or entity;

                (iii)          sending any transmissions to any person or entity who expresses their/its desire to discontinue receiving any communications (or “Opts-Out”);

                (iv)          violating any law and/or any carrier rules concerning short codes; and

                (v)           sending any transmissions which contain pornographic material, content concerning the use of illegal firearms, content concerning illegal goods or services, content concerning illegal drugs and related products, content concerning the use of tobacco products, and any other content which <<COMPANY>> and/or the owner of the Short Code may prohibit from time to time.

 

3.5          Short Code Misuse.  Your right to utilize the Short Code may be revoked in the event that Your use of the Short Code is determined by <<COMPANY>> or the owner of the Short Code to be in violation of this Agreement, violation of any law(s) and/or a violation of any agreements between the Short Code owner and a wireless carrier.  Indirect or attempted violations, and actual or attempted violations by Your customers/clients or a third party on Your behalf, shall be considered a violation by You.  In addition to the other remedies available to <<COMPANY>> or the Short Code owner within this Agreement, <<COMPANY>> and the Short Code owner reserve the right to strictly enforce this Agreement by, without limitation, suspending or terminating use of the Short Code prior to actively investigating a violation.

 

3.6          Terms of Use, Privacy Policy and Sweepstake Offers.  You acknowledge and agree that any information provided to You by <<COMPANY>> or posted on the <<COMPANY>> Webpage, including, but not limited to, the Terms of Use and Privacy Policy utilized by <<COMPANY>> on its website, is provided for information and/or convenience purposes only and <<COMPANY>> makes no warranties or representations as to the contents of the Terms of Use and/or Privacy Policy.  You must make your own determination as to the information’s applicability to You and the protection afforded by the Terms of Use and Privacy Policy based on Your specific business relationships.  You acknowledge and agree that the <<COMPANY>> Services do not include any services associated with sweepstake offers, and the like, and that You must make Your own determination regarding the terms and laws associated with any sweepstakes offered by You and/or Your customers/clients.

 

SECTION 4: OWNERSHIP

 

4.1          Ownership of Platform.  Nothing under this Agreement shall be construed as transferring ownership of the Platform, or any and all modifications, additions, customizations to the Platform, including, but not limited to, the work product and any specific modifications, additions and/or customizations made to the Platform in connection with this Agreement. 

 

4.2          Ownership of <<COMPANY>>’s Intellectual Property.  Title to the Intellectual Property rights owned or otherwise utilized by <<COMPANY>> and/or <<COMPANY>>’s affiliated entities, including, but not limited to its patents, processes, registered and common law trademarks, service marks, trade names, trade dress, symbols, slogans, emblems, logos, insignias, copyrights, trade secrets and combinations of the foregoing will always remain the property of <<COMPANY>>. 

 

SECTION 5: OBLIGATIONS OF CONFIDENTIALITY

 

5.1          Confidentiality.  You acknowledge that the maintenance of the confidentiality of the Platform, Technology and any other information/documentation associated with the <<COMPANY>> Services (“<<COMPANY>>’s Confidential Information) is of the utmost importance to <<COMPANY>>.  You acknowledge further that any misuse or unauthorized disclosure of the Platform, Technology and/or <<COMPANY>>’s Confidential Information would result in irreparable harm to <<COMPANY>>.  In accordance therewith, <<COMPANY>> Client covenants to treat the Platform, Technology and <<COMPANY>>’s Confidential Information as secret and confidential.

 

SECTION 6: WARRANTIES/LIMITATIONS OF LIABILITY

 

6.1          Warranty.  <<COMPANY>> does not warrant that the operation of the <<COMPANY>> Webpage will be uninterrupted or error-free, or that the Technology and/or the Platform is immune from fraudulent intrusion and/or unauthorized use or disclosure.  <<COMPANY>> Client assumes all responsibility for assuring the proper and lawful use of the <<COMPANY>> Webpage and all liability for any improper or unlawful use of the <<COMPANY>> Webpage. You assume all liability, which may arise in connection with any person or entity's use of the <<COMPANY>> Webpage.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, <<COMPANY>> OFFERS THE TECHNOLOGY, PLATFORM AND THE <<COMPANY>> WEBPAGE WITH NO WARRANTIES OF ANY KIND.  <<COMPANY>> SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF <<COMPANY>> AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

6.2          Limitations of Liability.  NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT: (i) NEITHER <<COMPANY>>, NOR ANY PERSON OR ENTITY ASSOCIATED WITH <<COMPANY>> WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY OF THE FOLLOWING: SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND; LOST PROFITS OR DAMAGES RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS OR FOR LOSS OF DATA; OR ANY OTHER DAMAGE TO INTANGIBLE PERSONAL PROPERTY, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF <<COMPANY>> HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) <<COMPANY>>'S TOTAL LIABILITY TO <<COMPANY>> CLIENT ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS RECEIVED FROM <<COMPANY>> CLIENT UNDER THIS AGREEMENT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

6.3          Reservation of Rights.  <<COMPANY>> and the Short Code owner generally do not pre-screen any promotional or messaging items prepared and/or created for <<COMPANY>> Client or any customers/clients of <<COMPANY>> Client.  However, <<COMPANY>> and the Short Code owner reserve the right (but undertake no duty) to do so and decide whether any promotional items or any other information utilized in connection with this Agreement is appropriate and/or complies with this Agreement, violates any law(s) and/or violates any agreements between the Short Code owner and a wireless carrier. <<COMPANY>> and/or the Short Code owner may, in their sole discretion, refuse to send any communication, remove any item (whether posted to a website hosted by <<COMPANY>> or otherwise) and/or terminate access to the Platform and/or any Technology associated with this Agreement for posting or publishing any material in violation of this Agreement, violation of any law(s) and/or violates any agreements between the Short Code owner and a wireless carrier, at any time and without prior notice.  <<COMPANY>> and/or the Short Code owner may immediately terminate any account which it believes, in its sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk text messages. 

 

SECTION 7:  INDEMNIFICATION

 

7.1          Indemnification.  <<COMPANY>> Client shall indemnify <<COMPANY>>, and <<COMPANY>>’s shareholders, members, directors, officers, employees and agents, and the Short Code owner and hold them harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees) incurred by them as a result of any claim made by a third party in connection with <<COMPANY>> Client’s acts or omissions under this Agreement, including any customers/clients of <<COMPANY>> Client.  <<COMPANY>> Client shall defend at its sole expense any such action and shall pay any costs, damages, settlement awards and attorneys' fees finally awarded against <<COMPANY>> and/or the Short Code owner in such action which are directly attributable to such claim.

 

SECTION 8:  MISCELLANEOUS

 

8.1          Miscellaneous.  You and <<COMPANY>> shall for all purposes be independent contractors.  Under no circumstances shall either party be deemed, as a result of this Agreement, an employee, agent or representative of the other party, and neither party shall have authority to incur any obligations or make any representations, warranties or guaranties on behalf of the other.  <<COMPANY>> may assign its rights to any payments under this Agreement to one or more other persons/entities without Your prior written consent.  In the event that one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions contained in this Agreement, and such other provisions shall be given effect in accordance with the manifest intent hereof.  This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes and merges all prior oral and written agreements, discussions and understandings between You and <<COMPANY>>.  All notices to be given to <<COMPANY>> in connection with this Agreement shall be in writing and shall be sufficient if sent by certified or registered mail, return receipt requested with postage prepaid, addressed to <<COMPANY>>                                                                                                          , with a copy to:                                                                                                                                                                                                                   , or at such other address hereafter made known to the other party.  All notices to <<COMPANY>> Client may be effectuated by e-mail message at any e-mail address previously provided to <<COMPANY>> by <<COMPANY>> Client.  <<COMPANY>> Client shall, at all times, maintain a valid e-mail address to receive system notifications, for billing purposes and other system alerts from <<COMPANY>>.  Any notice given as provided in this Agreement shall be deemed to have been given on the date of receipt by the party for which it is intended.  Section headings are for purposes of convenience only and are not intended to affect the meaning or interpretation of this Agreement.  This Agreement is made pursuant to, and shall be construed and enforced in accordance with, the laws of the State of                                                                                                 and United States federal law, to the extent applicable, irrespective of the principal place of business, residence or domicile of the parties hereto, and without giving effect to otherwise applicable principles of conflicts of law.  Any suit brought to enforce obligations hereunder shall only be brought in the courts, whether State or Federal, sitting in the County of                                                             , State of                                                                                .

Accepted and agreed to by the parties:

 

LICENSOR:  <<COMPANY>>                                                       LICENSEE: <<COMPANY>> CLIENT

 

 

 

                                                                                                                                                                                               

By:                                                                                                         By: