Certain capitalized terms, not otherwise defined above, have the meanings set forth or cross-referenced in this Section 1.
1.1 “Affiliate” means, with respect to any Party, any other person or entity which, directly or indirectly, owns or controls, or is owned or controlled by, or is under common control with, the specified Party. For purposes of this definition, the term “control (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) as applied to any Party, means the possession, directly or indirectly, of the power to direct or cause the direction of the management of that Party, whether through ownership of voting securities or otherwise.
1.2 “Application Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, which materials are designed to facilitate use of the Application Service and which are provided by Spotlight to Customer in accordance with the terms of this Agreement.
1.3 “Application Service” will mean Spotlight’s proprietary technology and application software set forth and described on Schedule A.
1.4 “Authorized End User” shall mean, collectively, any individual employees, agents or contractors of Customer accessing or using the Application Service solely on behalf and for the benefit of Customer in the operation of Customer’s business.
1.5 “Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party relating to the Products that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, for purposes of this Agreement, the Application Documentation will be deemed Confidential Information of Spotlight.
1.6 “Customer Content” will mean the data, media and content provided by Customer through the Application Service.
1.7 “Products” shall mean, collectively, the Applications Documentation, Application Service and Web Interface.
1.8 “Web Interface” will mean the website or websites through which Customer may access the Application Service in accordance with the terms of this Agreement.
1.9 “Assets” will mean tickets, passes, or assets entered for request in the Application. Asset will also include an accepted invitation separate from a ticket or a pass.
2. ACCESS AND USE.
2.1 Provision of Access. Subject to the terms and conditions contained in this Agreement, Spotlight hereby grants to Customer a non-exclusive, transferable right (subject to Section 9.5) to access the features and functions of the Products during the Term, solely for use by Authorized End Users in accordance with the terms and conditions herein. On or as soon as reasonably practicable after the Effective Date, Spotlight shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Service (the “Access Protocols”). Spotlight shall also provide Customer the Application Documentation to be used by Customer in accessing and using the Application Service. Customer acknowledges and agrees that, as between Customer and Spotlight, Customer shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Application Service, and shall cause Authorized End Users to comply with such provisions.
2.2 Application Documentation License. Subject to the terms and conditions contained in this Agreement, Spotlight hereby grants to Customer a non-exclusive, transferable right and license (subject to Section 9.5) to use the Products during the Term for Customer’s internal purposes as contemplated herein.
2.3 Usage Restrictions. Customer will not (i) copy or duplicate any part of a Product; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application Service is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify any part of a Product, or create any derivative product from any of the foregoing, except with the prior written consent of Spotlight; or (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2. Customer will not use the Products except in compliance with Spotlight’s obligations to any third party with respect thereto incurred prior to the Effective Date, provided that Spotlight has notified Customer of such obligations. Customer will ensure that its use of the Products complies with all applicable laws, statutes, regulations or rules.
2.4 Retained Rights; Ownership. Subject to the rights granted in this Agreement, Spotlight retains all right, title and interest in and to the Products, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Spotlight retains the right to use the foregoing for any purpose in Spotlight’s sole discretion.
2.5 Service Levels. Spotlight represents that the Application Service will conform in all material respects to the service standards set forth in the “Service Level Agreement” available here when accessed and used in strict accordance with the Application Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement (including, without limitation, Section 6.1 of this Agreement), Customer acknowledges and agrees that its sole and exclusive remedy, and Spotlight’s sole and exclusive obligation, with respect to any breach of the foregoing representation shall be the remedies specified in such Service Level Agreement.
3. CUSTOMER OBLIGATIONS.
3.1 Authorized End User Access to Services. Subject to the terms and conditions herein, Customer may permit any Authorized End User to access and use the features and functions of the Application Service through the Web Interface.
3.2 Provision of Support Services. Spotlight will provide the maintenance and technical support services, with respect to provision of access to, and use of, the Application Service, as such support services are further described in the Service Level Agreement (see Section 2.5 above). Spotlight reserves the right to offer different levels of support, which may be subject to different prices, as may be set forth in the Service Level Agreement.
3.3 Assistance. Customer is responsible for setting up its own systems and internet services, as they may be required, for access to the Application Service. Customer agrees to assist Spotlight to the extent it may be reasonably necessary to enable Spotlight to perform its obligations hereunder.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration of the rights granted to Customer and the performance of Spotlight’s obligations under this Agreement, Customer shall pay to Spotlight the fees set forth in Schedule A. Unless otherwise provided in a Schedule, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Spotlight with respect thereto.
4.2 Upgrades. Once an Asset threshold has been exceeded as detailed in Schedule A, Company will be billed at the appropriate tier for the remainder of the current term year and subsequent annual term.
4.3 Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Spotlight’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Customer will make all required payments to Spotlight free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Spotlight will be Customer’s sole responsibility, and Customer will, upon Spotlight’s reasonable written request, provide Spotlight with official receipts issued by the appropriate taxing authorities, or such other evidence as Spotlight may reasonably request, to establish that such taxes have been paid.
4.4 Late Payments; Interest. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer shall also be responsible for Spotlight’s cost of any collection of amounts due to Spotlight pursuant to this Agreement, including any reasonable attorney’s fees, court costs, collection firm costs and other similar expenses of Spotlight.
5. TREATMENT OF CONFIDENTIAL INFORMATION.
5.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
5.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, directors, officers, advisors and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 8, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Spotlight may collect aggregated statistical data regarding Customer’s use of the Application Service and provide such aggregated statistical data to third parties. In no event shall Spotlight provide to third parties specific data regarding Customer or Customer’s Authorized End Users.
5.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without any use of or benefit from the Confidential Information; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
5.4 Injunctive Relief. Each Party agrees that its breach of the provisions of this Section 5 may cause irreparable damage for which recovery of money damages would be inadequate. Each Party, shall, therefore, be entitled to obtain timely equitable relief, including injunction, to protect its rights under this Section 5 in addition to all other remedies available at law or equity, without the need to post a bond or other undertaking.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Mutual Representations. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
7.1 Special Disclaimer regarding Third Party Offerings. Customer acknowledges and agrees that Spotlight may, as a convenience to Customer, offer links to third party offerings (the “Third Party Offerings”) through the Web Interface and/or the Application Services. Customer also acknowledges and agrees that any such Third Party Offerings are not licensed pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Customer shall have only such rights and/or licenses, if any, to use such Third Party Offerings as are set forth in the relevant licenses identified at the website accessed by the link where such Third Party Offerings terms are identified. Spotlight will have no obligation whatsoever under this Agreement to support or maintain any such Third Party Offerings, nor will Spotlight have any liability under this Agreement, regardless of the nature of the claim or the nature of the claimed or alleged damages, including, without limitation, direct, indirect, incidental, consequential or punitive damages, for any claim arising from or related to Customer’s use of the Third Party Offerings, and Spotlight disclaims any and all representations and warranties, express, implied or statutory, with respect to any and all such Third Party Offerings, including without limitation, any warranties of merchantability, fitness for a particular purpose, system integration, data accuracy, title, non-infringement, quiet enjoyment, and/or non-interference.
7.2 General Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND ALL SERVICES PERFORMED BY SPOTLIGHT ARE PROVIDED “AS IS,” AND SPOTLIGHT DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. SPOTLIGHT DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY SPOTLIGHT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
7.3 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL SPOTLIGHT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SPOTLIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED
OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF SPOTLIGHT TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO SPOTLIGHT BY CUSTOMER UNDER SECTION 4.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.4 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
8. TERM AND TERMINATION.
8.1 Term. The term of this Agreement will commence on the Effective Date and will continue for a period defined in the Spotlight Cover Sheet, unless earlier terminated in accordance with this Section 8, and will automatically renew for successive one (1)-year terms, unless either Party provides written notice of its desire not to renew at least thirty (30) days prior to the expiration of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).
8.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
8.3 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
8.4 Effect of Termination. Upon any termination of this Agreement, Customer will (i) immediately discontinue all use of the Products and any Spotlight Confidential Information; (ii) delete any Spotlight Confidential Information from Customer’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) return to Spotlight or, at Spotlight’s option, destroy, all copies of the Application Documentation and any Spotlight Confidential Information then in Customer’s possession; and (iv) promptly pay to Spotlight all amounts due and payable hereunder.
8.5 Survival. The provisions of Sections 2.4, 5, 7, 8.4, 8.5 and 9 will survive the termination of this Agreement.
9.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
9.2 Independent Contractors. In making and performing this Agreement, Customer and Spotlight act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.
9.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
9.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
9.5 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Spotlight, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect; provided however that no such consent shall be required for Customer’s assignment to any of its Affiliates, so long as Customer also remains responsible for its obligations hereunder. this Agreement to an Affiliate.
9.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
9.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
9.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
9.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
9.10 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK.
9.11 U.S. Government End-Users. Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.
9.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
9.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.