nativeMsg, Inc. (“nativeMsg,” “we” or “us“) owns proprietary technology that allows its clients to send certain mobile messages as well as a proprietary application program interface (the “API“) that enables communication between third party software or other technologies as specified by nativeMsg and the nativeMsg Technology, as further defined below. nativeMsg also makes available Widgets (defined in Section 1.10 below) that can be posted on third party platforms by clients to collect Subscriber Data in connection with use of the nativeMsg Services.
This nativeMsg License and Services Agreement (“Agreement“) sets forth the terms and conditions by which nativeMsg permits you (“You” or “Licensee“) to access and utilize certain technologies provided by nativeMsg, including, without limitation, the API and any Widget (collectively, the “nativeMsg Services“).
In some instances, a written document (each, a “Statement of Work”) will further describe the nativeMsg Services and the applicable Fee (defined in Section 10 below) and will be effective when signed by an authorized representative of both parties. Each Statement of Work will be governed by the terms of this Agreement and such Statement of Work is incorporated herein by this reference. In the event there is a conflict between this Agreement and a Statement of Work, this Agreement will control unless otherwise expressly set forth in the Statement of Work naming the section to be amended in that instance. No Licensee purchase orders, invoices or other business forms will modify, supersede or otherwise alter the terms of this Agreement or a Statement of Work.
1. Definitions. The following definitions apply to this Agreement:
1.1 “Wireless Carrier” means a wireless telecommunications carrier that makes Mobile Messages (defined below in Section 1.5) available to its Subscribers (defined below in Section 1.7).
1.2 “Distributor” means any third party that is billing Subscribers for access to Mobile Messages or directly providing Mobile Messages to Subscribers, including, without limitation, Wireless Carriers and text message aggregators.
1.3 “Licensee Application” means a software application owned, operated, and/or developed by or on behalf of Licensee that interacts with the API as permitted by nativeMsg.
1.4 “Licensee Content” means all information, data, text, visuals, graphics, artwork, animation, video content, audio content, photographs or other content or materials, including any updates thereto, and where applicable, any source code comprised therein, provided by Licensee (or one of its agents, representatives or affiliates) and incorporated into a Licensee Application, Widget or Mobile Message (defined below in Section 1.5).
1.5 “Mobile Message” means all SMS, MMS and other messages consisting of Licensee Content, which are distributed and made available to Subscribers by Distributors.
1.6 “nativeMsg Technology“ means all technologies made available to Licensee by nativeMsg in connection with the nativeMsg Services.
1.7 “Subscriber” means a wireless carrier account holder and owner of a wireless device associated with the account that sends or receives Mobile Messages.
1.8 “Subscriber Data” means all personally identifiable information and non-personally identifiable information from or about Subscribers related to Subscriber’s access to and use of the Mobile Messages, including, without limitation, Subscribers’ mobile telephone numbers and Mobile Message usage patterns.
1.9 “User Data” means all demographic, transactional, personally identifying, and other information, data, files or records pertaining to mobile phone users.
1.10 “Widget” means a module of nativeMsg’s software, in object code form, that can be installed and executed and that displays content and other data served by nativeMsg.
a. Limited License to nativeMsg Technology. Excluding the API and subject to Licensee’s compliance with this Agreement, nativeMsg grants to Licensee a limited, nonexclusive, royalty free, revocable, nontransferable license during the Term to use the nativeMsg Technology solely in connection with the nativeMsg Services.
b. Limited License to API. To the extent that Licensee uses nativeMsg’s API, the following applies:
1. nativeMsg grants Licensee a limited, nonexclusive, royalty free, revocable, nontransferable license during the Term to use the API solely to: (i) run Licensee Applications; and (ii) implement Widgets into web sites on which licensee has the right to do so (“Licensee Web Sites“) (collectively, the “Permitted API Use“). The previous sentence notwithstanding, Licensee understands that its access to the API will be subject to nativeMsg’s sole control and, accordingly, nativeMsg may limit or terminate Licensee’s access to the API at any time without notice to Licensee and without liability for nativeMsg.
2. nativeMsg may (in its sole discretion) provide to Licensee confidential information to enable a Licensee Application to access nativeMsg’s application server for the Permitted API Use (the “API Access Information“). Licensee will comply with any documentation provided by nativeMsg in connection with implementing the API. Licensee agrees that it will not share the API Access Information with any third party, other than as permitted by nativeMsg in writing; or (ii) use or permit use of the API or content made available by nativeMsg in any way that is excessive or abusive of nativeMsg bandwidth or other nativeMsg resources, or in any other way not expressly permitted or granted under this Agreement.
c. Restrictions. Licensee agrees that it will not modify or permit or assist any other party to modify any part of the nativeMsg Technology in any manner whatsoever or otherwise make copies of all or part of the nativeMsg Technology onto any media, except with the express prior written consent of nativeMsg, which nativeMsg may withhold in its sole discretion. Licensee further agrees that it will not, and will not permit or assist any other party to, disassemble, decompile or reverse engineer all or any part of the nativeMsg Technology.
d. License to Licensee Application and Licensee Content. Licensee grants to nativeMsg a royalty-free, fully paid up, transferable, worldwide right and license during the Term to incorporate, reproduce, digitize, adapt, modify, format, transmit, distribute, publicly perform, publicly display and otherwise use the Licensee Content and all Licensee Applications to perform the nativeMsg Services.
e. As between nativeMsg and Licensee, Licensee is the owner of personally identifying User Data that it provides to nativeMsg or that Subscribers provide to nativeMsg when signing up via a text-in method to receive Mobile Messages from Licensee (“Licensee User Data“). Licensee grants to nativeMsg a royalty-free, fully paid up, transferable, worldwide right and license to store, use and transfer the Licensee User Data to provide the nativeMsg Services. All other User Data is owned by nativeMsg, including, without limitation, data derived from Licensee User Data but rendered non-personally identifiable.
Licensee acknowledges and agrees that, as between Licensee and nativeMsg, nativeMsg owns and will retain all rights, title and interest in and to:
(i) the nativeMsg Technology including, without limitation, Widgets, the API, any and all versions and updates made to the nativeMsg Technology and all source code, object code and similar materials embodied therein; and
(ii) all information and materials provided by nativeMsg to Licensee in connection with the nativeMsg Services, including, without limitation, all trade secrets, financial data, tools, software, concepts, methodologies, inventions, patterns, algorithms, techniques, know-how, formats, engines, modules, applications, controls, data, and other content, regardless of whether such materials were created or developed prior to or during the Term (collectively, 3(i) and 3(ii) the “nativeMsg Materials“).
To the extent Licensee obtains any rights in the nativeMsg Materials (excluding User Data) due to the performance of its obligations under this Agreement, Licensee hereby irrevocably assigns to nativeMsg all rights, title and interest in the nativeMsg Materials.
4. Licensee Acknowledgments and Warranties.
Licensee acknowledges and warrants that:
c. Licensee will access and use the nativeMsg Services and the nativeMsg Materials only as authorized by nativeMsg, and not by fraudulent means or activities such as by robot, spider or scraper.
d. Licensee will not bypass any robot exclusion headers (including using any device, software, or routine to accomplish that goal) contained in the nativeMsg Materials or the nativeMsg Services, or interfere or attempt to interfere with the proper working of the nativeMsg Materials or the nativeMsg Services. Licensee will not take any action that imposes an unreasonable or disproportionately large load on the nativeMsg Materials or the nativeMsg Services, including, without limitation, on nativeMsg’s servers, as determined by nativeMsg in its sole discretion.
e. Licensee has the right to enter into this Agreement and to perform its obligations under this Agreement;
f. Licensee has the right to grant to nativeMsg the licenses granted by it during the Term;
g. By entering into this Agreement and performing its obligations under this Agreement, Licensee does not and will not violate, conflict with, breach, default or otherwise adversely affect any agreement, right or obligation existing between Licensee and any other person, firm or entity;
h. Licensee will comply with, and will ensure that its use of the nativeMsg Services, including, without limitation, all of its Mobile Messages and campaigns and advertisements related thereto comply with, all applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities including, without limitation, the Telecommunications Consumer Protection Act, Telemarketing and Consumer Fraud and Abuse Prevention Act, any regulation of the United States Securities and Exchange Commission or any stock exchange, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and the Children’s Online Privacy Protection Act (collectively, “Laws”);
i. Licensee will comply with, and will ensure that its use of the nativeMsg Services, including, without limitation, all of its Mobile Messages and campaigns and advertisements related thereto comply with, all applicable industry guidelines, including, without limitation, the then-current version of the Mobile Marketing Association’s Consumer Best Practices Guidelines and any applicable self-regulatory guidelines applicable to the content or distribution of a Mobile Message (collectively, “Industry Guidelines”);
j. Licensee will not disobey any requirements, procedures, policies or regulations of nativeMsg or any Distributor;
k. the Licensee Content will not violate, misappropriate or infringe upon any copyright, patent, trade secret, trade identity, or any personal, moral, literary, privacy, publicity or other intellectual property or proprietary right;
l. the Licensee Content will not cause nativeMsg to violate any Laws or Industry Guidelines;
m. Licensee will not authorize the transmission of Mobile Messages or take any action to transmit any Mobile Messages to a Subscriber unless the recipient Subscriber has expressly consented (as required by, including, without limitation, the Laws and Industry Guidelines) to receive the Mobile Message and the Licensee Content contained therein and has not subsequently withdrawn his/her consent;
n. Licensee will only provide nativeMsg with Subscriber Data for those Subscribers that have affirmatively and expressly consented (as required by including, without limitation, the Laws and Industry Guidelines) to receive Mobile Messages containing advertising materials from Licensee;
o. If a Subscriber notifies Licensee in any manner whatsoever that Subscriber withdraws his/her consent to receive Mobile Messages from Licensee, Licensee will notify nativeMsg within seven (7) business days of such withdrawal. Licensee acknowledges that Licensee must regularly review any messages received in its account through the nativeMsg Services to determine if a Subscriber has attempted to withdraw consent and unsubscribe.
p. Licensee will not transmit any materials via the nativeMsg Services or the nativeMsg Materials, Licensee Applications, Widgets or Licensee Web Sites that:
(i) are or may be inaccurate, false, incomplete, patently offensive, illegal, tortious, pornographic, obscene, sexually explicit or potentially dangerous or harmful, including, without limitation, content that is harmful to minors;
(ii) constitute false advertising or unfair trade or deceptive practices;
(iii) threaten, harass, intimidate or abuse others;
(iv) promote violence or describe how to perform a violent act;
(v) include any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap;
(vi) promote any illegal activity;
(vii) defame, libel, ridicule or disparage anyone, including, without limitation, any materials that affect the reputation of, embarrass or libel nativeMsg or nativeMsg’s clients, sponsors, advertisers, directors, principals, representatives, agents, employees, successors, assigns, licensors or licensees;
(viii) solicit participation in or raise money for a pyramid or other multi-tiered marketing scheme;
(ix) constitute a virus, worm, Trojan Horse, easter egg, time bomb, spyware or any other content that damages, hijacks, disables, impairs or otherwise interferes with the nativeMsg Services; the nativeMsg Materials; or any hardware, software, network, data or telecommunications equipment (whether belonging to nativeMsg or not);
(x) modify, impair, disrupt, alter or interfere with the use, features, functions, operation or maintenance of the nativeMsg Services or the nativeMsg Materials;
(xi) act as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats, 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”);
(xii) use or launch any automated system or unauthorized script, including without limitation, any spider, robot (or “bot”), scraper or offline reader that accesses the nativeMsg Services or the nativeMsg Materials;
(xiii) cover or obscure any banner or other advertisement;
(xiv) interfere with or circumvent any security feature of the nativeMsg Services or the nativeMsg Materials or any feature that restricts or enforces limitations on use of or access to the nativeMsg Services or the nativeMsg Materials; or
(xv) could permit Licensee to access nativeMsg’s or a User’s software, hardware, network, data or telecommunication equipment.
p. Licensee understands that nativeMsg may modify, improve, update or upgrade the nativeMsg Services and the nativeMsg Technology, including without limitation, the “look and feel” of the nativeMsg Services, at its sole discretion and at any time and that Licensee will adopt any such modifications, improvements, updates or upgrades as required by nativeMsg.
q. Licensee understands that Subscriber Data is available for download by Licensee via the nativeMsg Services during the Term. You agree to periodically download and backup Subscriber Data during the Term. nativeMsg will not make Subscriber Data available to You for more than sixty (60) days after any termination of this Agreement.
5. Audit Rights. nativeMsg reserves the right to periodically audit and review the contents of the, Licensee Applications, Widgets and Licensee Web Sites to ensure Licensee’s compliance with the terms and conditions of this Agreement and any Statements of Work and Additional Agreements.
6. Costs. Except for any costs expressly assumed by nativeMsg in writing, Licensee will be solely responsible for all costs and expenses relating to the exercise of its rights and performance of its obligations under this Agreement. Licensee, for example, will at its sole cost and expense: (a) operate, host and maintain the Licensee Application(s); and (b) be solely responsible for the acquisition, installation, configuration, implementation, operation, and maintenance of all information processing equipment, software, communications, and other resources and facilities necessary to utilize the nativeMsg Services and the nativeMsg Materials.
7. Licensee Security Obligations and Procedures.
(a) Licensee warrants and represents that the systems, software or hardware Licensee uses to interact with the nativeMsg Technology (including, without limitation, the API and any Widget) will not contain any computer code that will disrupt, disable, harm, or otherwise impede the operation of the nativeMsg Technology (including, without limitation, the API and any Widget) or any software, hardware, firmware, computer system or network (sometimes referred to as “viruses,” “worms” or “malware”). Licensee also represents and warrants that it will keep all User Data secure.
(b) Licensee will promptly notify nativeMsg if Licensee becomes aware of any actual or attempted unauthorized use, violation, compromise or breach of security (electronic or physical) that impacts any servers, databases, logs or other materials generated from or used in conjunction with the nativeMsg Services or nativeMsg Materials (“Licensee Infrastructure”), whether the incident originates within Licensee or externally (“Security Incident”) and will immediately use continuous efforts to address and correct any Security Incident. Licensee agrees to assist nativeMsg in the investigation of any Security Incident and to take action that is reasonably necessary to prevent the continuation or recurrence of any Security Incident. nativeMsg will have the right, but not the obligation, to perform an independent audit to ensure that all necessary, remedial actions have been performed to correct any Security Incident. At any time during the Term, nativeMsg will have the right, but not the obligation, to conduct, or cause a qualified independent third party to conduct, vulnerability assessment testing of the Licensee Infrastructure. Licensee will maintain appropriate processes to identify and correct any weakness at the network services, operating system, application or physical level that could allow a Security Incident to occur. Upon five (5) days prior written notice, or immediately during an at risk situation, Licensee will permit nativeMsg representatives to access, during normal business hours, the computing environment where the Licensee Infrastructure is located, for purposes of performing inspections or walk-throughs in order to confirm compliance with this Agreement.
8. Suspension. In addition to the nativeMsg’s right to terminate as detailed in Section 12 below, nativeMsg may suspend Licensee’s rights to use or make available the nativeMsg Services or the nativeMsg Materials at any time without liability and without providing prior notice to Licensee.
9. Fees, Advertising and Taxes. nativeMsg may charge a fee (“Fee”) in exchange for providing the nativeMsg Services and the nativeMsg Materials and it reserves the right to require payment of all Fees in full prior to providing the nativeMsg Services. Licensee agrees to pay the applicable Fee and authorizes nativeMsg and its authorized agents to process all charges incurred by Licensee. Licensee agrees that it will be solely responsible for the payment of all federal and state taxes, excluding taxes attributable to nativeMsg’s gross income, in connection with the nativeMsg Services and agrees that it will reimburse nativeMsg for all such taxes to the extent they are not included in the Fee.
10. Confidentiality. Licensee acknowledges that: (a) the nativeMsg Materials; and (b) any other information that nativeMsg may identify as confidential from time to time, is nativeMsg’s confidential information (the “nativeMsg Confidential Information”). Licensee agrees to: (i) keep confidential all nativeMsg Confidential Information; (ii) not disclose or convey nativeMsg Confidential Information to third parties; and (iii) treat nativeMsg Confidential Information with the same degree of confidentiality and care with which Licensee treats its own confidential information, but in no event less than a reasonable standard of care.
Licensee acknowledges that the nativeMsg Confidential Information is of extremely high value to the Licensee and that the disclosure or misuse of nativeMsg Confidential Information would cause irreparable harm to Licensee. In the event of any breach of Licensee’s obligations under this Section 11, nativeMsg will, in addition to such other remedies as may be available to it at law or in equity, be entitled to enforce its rights by obtaining injunctive relief against Licensee and its agents and employees without requirement of posting bond or proving actual damages. In the event Licensee is ordered via a valid order of a court of competent jurisdiction to disclose any nativeMsg Confidential Information, Licensee will immediately notify nativeMsg in writing and see seek confidential treatment of such information.
11. Term, Termination and Effect of Termination.
a. Term. This Agreement will continue in full force and effect until terminated pursuant to Section 12(b) below (the “Term“).
b. Termination. nativeMsg may terminate this Agreement in its sole discretion upon providing ten (10) days written notice to Licensee or immediately if a change in law or interpretation of law requires so (in nativeMsg’s sole discretion). nativeMsg may also terminate this Agreement at any time, without notice to Licensee, based on Licensee’s actual or alleged breach of this Agreement. Licensee may terminate this Agreement upon providing thirty (30) days written notice to nativeMsg.
c. Effect of Termination. Upon expiration of the Term, Licensee’s right to use the nativeMsg Services and the nativeMsg Materials will immediately terminate. Licensee will delete any and all nativeMsg Materials in its possession (excluding the User Data) and will no longer have any right to use or possess the nativeMsg Materials. To evidence such destruction and removal, Licensee will provide nativeMsg, upon nativeMsg’s request, with an affidavit signed by an authorized officer of Licensee confirming such facts. In the event of termination, Licensee will be obligated to pay nativeMsg any outstanding Fees due under this Agreement or any Statements of Work or Additional Agreements as of the effective date of termination.
12. Disclaimer of Warranties. LICENSEE UNDERSTANDS THAT THE nativeMsg SERVICES, INCLUDING WITHOUT LIMITATION THE ABILITY FOR LICENSEE TO SEND OR CAUSE THE TRANSMISSION OF THE MOBILE MESSAGES, ARE NOT AVAILABLE ON ALL WIRELESS CARRIERS AND WIRELESS DEVICES. THE nativeMsg SERVICES, AND THE nativeMsg MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” LICENSEE FURTHER UNDERSTANDS AND AGREES THAT THE nativeMsg SERVICES AND THE nativeMsg MATERIALS MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY nativeMsg OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND nativeMsg’S REASONABLE CONTROL WITHOUT NOTICE TO LICENSEE AND WITHOUT LIABILITY FOR nativeMsg. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, nativeMsg AND nativeMsg’S DIRECTORS, PRINCIPALS, REPRESENTATIVES, AGENTS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND LICENSEES (COLLECTIVELY, THE “nativeMsg PARTIES“) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE nativeMsg SERVICES;; (B) THE nativeMsg MATERIALS; (C) THE ABILITY OF THE nativeMsg SERVICES, THE MOBILE MESSAGES OR THE NATIVEMSG MATERIALS TO WORK WITH ANY PARTICULAR HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR WIRELESS CARRIER; (D) THE ACCURACY OF ANY USER DATA; (E) WHETHER OR NOT THE nativeMsg SERVICES OR THE nativeMsg MATERIALS WILL BE COMPATIBLE WITH AND/OR OPERATE WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR WIRELESS CARRIER NOW OR LATER CONTEMPLATED, INCLUDING, WITHOUT LIMITATION, WATER MARKING, ENCRYPTION, AND/OR ANY OTHER SOFTWARE THAT MAY BE EMBEDDED IN OR USED IN CONJUNCTION WITH THE NATIVEMSG SERVICES OR THE nativeMsg MATERIALS; OR (F) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE nativeMsg SERVICES, THE MOBILE MESSAGES, THE nativeMsg MATERIALS OR TELECOMMUNICATIONS EQUIPMENT. nativeMsg DOES NOT WARRANT THAT THE nativeMsg SERVICES, OR THE nativeMsg MATERIALS WILL BE COMPLETE, ACCURATE, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE nativeMsg SERVICES, THE MOBILE MESSAGES OR THE nativeMsg MATERIALS OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
nativeMsg DOES NOT REPRESENT OR WARRANT THAT LICENSEE’S ACTIVITIES OR USE OF THE nativeMsg SERVICES, THE SENDING OF THE MOBILE MESSAGES OR THE nativeMsg MATERIALS IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. LICENSEE UNDERSTANDS THAT BY ACCESSING OR USING THE nativeMsg SERVICES OR THE nativeMsg MATERIALS IT ACTS AT ITS OWN RISK AND IT REPRESENTS AND WARRANTS THAT ITS ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE IT ACCESSES OR USES THE nativeMsg SERVICES OR nativeMsg MATERIALS. FURTHER, THE nativeMsg PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT.
13. Indemnification & Limitation of Liability.
Licensee agrees to defend, indemnify and hold nativeMsg and its parents, subsidiaries, affiliates, and the officers, directors, agents, representatives and employees of each from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) Licensee Content; (b) use of the nativeMsg Services; or (c) Licensee’s breach (actual or alleged) or anticipatory breach of this Agreement; (c) any misrepresentation made by Licensee. You will cooperate as fully required by Licensee in the defense of any claim. Licensee reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, and Licensee will not in any event settle any claim without the prior written consent of a duly authorized employee of nativeMsg.
THE nativeMsg PARTIES WILL NOT BE LIABLE FOR LICENSEE’S OR A SUBSCRIBER’S USE OF OR ACCESS TO THE NATIVEMSG SERVICES, THE MOBILE MESSAGES OR THE nativeMsg MATERIALS; THE FAILURE OF A MOBILE MESSAGE TO REACH ANY OR ALL INTENDED SUBSCRIBERS; OR ANY DAMAGE TO ANY HARDWARE, SOFTWARE, NETWORK, DATA OR TELECOMMUNICATIONS EQUIPMENT, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, LOSS OF SUBSCRIBER DATA OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
UNDER NO CIRCUMSTANCES WILL THE nativeMsg PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE nativeMsg SERVICES, THE MOBILE MESSAGES OR THE nativeMsg MATERIALS OR ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY nativeMsg OR LAW ENFORCEMENT AUTHORITIES REGARDING LICENSEE’S USE OF THE nativeMsg SERVICES, THE MOBILE MESSAGES OR THE nativeMsg MATERIALS, EVEN IF FORESEEABLE OR IF nativeMsg HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER IN AN ACTION BASED IN TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE. IN NO EVENT WILL nativeMsg’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE FEE nativeMsg HAS CHARGED LICENSEE (IF ANY) DURING THE MONTH IN WHICH THE ALLEGED DAMAGE, LOSS, OR CAUSE OF ACTION WAS INCURRED OR U.S. $10.00, WHICHEVER AMOUNT IS GREATER.
LICENSEE RECOGNIZES AND CONFIRMS THAT IN THE EVENT LICENSEE INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF nativeMsg’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO LICENSEE ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE LICENSEE TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY PROPERTY, PRODUCT OR SERVICE OWNED OR CONTROLLED BY THE nativeMsg PARTIES, AND LICENSEE WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SUCH PROPERTY, PRODUCT OR SERVICE OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
a. Independent Contractor. It is understood and agreed that nativeMsg is acting as an independent contractor in the performance of the nativeMsg Services, and nothing herein contained shall be deemed to create an agency relationship between nativeMsg and Licensee.
b. Advertising Agency. To the extent that Licensee is an advertising agency acting as an agent on behalf of its Licensee (an “Advertising Agency”), Advertising Agency agrees that it will notify its Licensee of all requirements and obligations under this Agreement; and that Advertising Agency and its Licensee will be jointly and severally liable for non-compliance with all requirements and obligations under this Agreement, including without limitation, all payment obligations.
c. Credit. Licensee agrees that references to one or more of nativeMsg’s trade identities, including, without limitation, the language “Powered by nativeMsg,” may appear in any products or services that are part of the nativeMsg Services in a size and location determined by nativeMsg in its sole discretion.
d. Marketing. Licensee agrees that nativeMsg will have a limited, non-transferable, non-exclusive, royalty-free, fully paid, worldwide license to use Licensee’s name and logo and any quotes or statements made by Licensee regarding the nativeMsg Services in connection with nativeMsg’s corporate and external communications, including, without limitation, in press releases; product brochures and other marketing materials; and financial reports. Licensee further agrees that the aforementioned uses may include a reference to Licensee as a Licensee of nativeMsg and a user of the nativeMsg Services.
e. Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all other prior or contemporaneous written or oral agreements pertaining thereto. No oral statement of any nativeMsg representative or employee will, in any manner or degree, modify or otherwise affect this Agreement. No nativeMsg purchase orders, invoices or other business forms will modify, supersede or otherwise alter this Agreement unless expressly stated in the applicable purchase order, invoice or other business document.
f. Governing Law, Venue and Jurisdiction. This Agreement will be construed and enforced in accordance with the laws of the State of Illinois, without regard to its conflicts of law principles and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable. Any cause of action filed by Licensee with respect to this Agreement, the nativeMsg Services, the nativeMsg Materials or the Mobile Messages must be filed in the Federal courts located in the County of Cook, City of Chicago, State of Illinois within ninety (90) days after the occurrence of the facts giving rise to the cause of action, otherwise the cause shall be forever barred. Licensee hereby consents and submits to the exclusive personal jurisdiction and venue of the courts located in the County of Cook, City of Chicago, State of Illinois for any cause of action relating to or arising under this Agreement, the nativeMsg Services, the nativeMsg Materials or the Mobile Messages.
g. Assignment. Licensee may not transfer or assign its rights or obligations under this Agreement to any third party (including its parent, subsidiary or affiliate), including, without limitation, any transfer or assignment by way of merger, consolidation, sale of all or substantially all of its assets, without the prior written consent of nativeMsg. nativeMsg may freely assign its rights and obligations under this Agreement to any third party (including its subsidiary or affiliate).
h. Successors & Assigns. Subject to Section 15(h) above, this Agreement is binding upon and will inure to the benefit of the parties hereto and their respective assignors, predecessors in interest, successors, assigns, heirs and personal representatives.
i. Severability. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
j. Force Majeure. nativeMsg will not be liable for delay or default in the performance of its obligations under this Agreement or any Statements of Work or Additional Agreements if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or third party labor disputes.
k. Waiver. No waiver by either party of any performance of the other party required under this Agreement or any default of either under the terms of this Agreement will constitute or imply, whether by passage of time or otherwise, any further waiver of any other performance or default.
l. Subpoenas. In the event that nativeMsg or any of its employees, agents or subcontractors is served with or becomes subject to any subpoena in a legal proceeding to which Licensee is a party and that subpoena seeks disclosure of materials or information related to the goods, services, information or deliverables that nativeMsg provides to Licensee hereunder, then Licensee shall reimburse nativeMsg for all direct and documented costs and expenses charged by a third party for nativeMsg to comply with such a subpoena, including without limitation, reasonable attorney’s fees and costs related thereto.