MOPIX STANDARD TERMS AND CONDITIONS
A. Scope of Services. Subject to the terms and conditions of this Agreement, MoPix and its designees (collectively “MoPix”) shall, at no cost to Client other than as may later be agreed between the Parties, timely perform the services and deliver the materials set forth in this Agreement, and/or as otherwise subsequently agreed to in writing by the Parties (collectively, the “Services”), in order to design, develop, implement, publish and maintain individual CCAs for programs owned and/or controlled by Client. A user who purchases or otherwise downloads a CCA shall be referred to as a “Member.”
B. Conversion of Client Content. As part of the Services, MoPix shall convert, input and otherwise format as necessary all content provided by Client to be included in each CCA. This content may include a feature film or other long form content, trailer(s), photos, production notes, crew biographies, filmographies, videographies, video outtakes, behind-the-scenes footage, electronic press kits, Client trademarks, descriptive or other text, illustrations and/or graphics (collectively, the “Client Content”).
C. Design and Functionality of the CCA. The CCA will be built upon and published through the MoPix Platform where each CCA will receive and respond to various communication and transactions with Members.
D. Work Orders. For any customized development Client may make modifications to a CCA in accordance with the following procedure:
(1) Client shall provide MoPix with a written Work Order specifying the modifications for any customized development needs (each a “Work Order.”)
(2) MoPix shall inform Client in writing within two days of receiving a written Work Order whether the modifications would result in additional time or expense. If so, MoPix shall provide, in writing, the adjustments in Deliverables and Fees and set forth a delivery scheduled required by the Work Order (the “Adjustment Proposal”).
(3) The Adjustment Proposal will be deemed approved unless the Client provides written notice of rejection within 48 hours of receipt. If approved, the Adjustment Proposal shall be deemed a part of this Agreement and be governed by its terms and conditions.
(4) If Client timely rejects the Adjustment Proposal, MoPix shall continue providing Services as though no Work Order was submitted.
2. CONTINUING SERVICES
A. Publication of the CCA. Once the CCA is built, it shall be transferred to and activated on (i.e. “Published”) the MoPix Platform. MoPix shall have full and permanent administrative privileges over the developer/publisher’s App registration accounts during the Term and have the right to take all action it deems necessary to meet its obligations and exercise its rights hereunder.
B. Periodic Changes and Updates. From time to time, MoPix may issue changes or updates to the MoPix Platform or a CCA which may add, modify, and/or remove features. Client acknowledges that these updates may be pushed out automatically with no notice when such updates do not involve additional costs to Client. MoPix will make reasonable efforts to notify Client in advance of any revised or enhanced features and when such changes result in additional costs to Client will not implement same absent Client’s consent.
C. Usage Information. MoPix may, for its own account, manage the recordation of all information reflecting access and usage of the CCAs, including, without limitation, audited and unaudited hits, visits, click-throughs, impressions and purchases; and information directly or indirectly obtained from Members (collectively “Usage Information”). From time to time, MoPix may distribute to Client some or all of the Usage Information.
D. Current Technology. MoPix represents and warrants that during the Term it will have the ability to integrate the most current and up-to-date commercially available technology into the CCAs, and will do so at Client’s request subject to negotiation of additional fees.
A. MoPix Platform License. During the Term (as defined below) or until all CCAs are canceled as specified herein, MoPix hereby grants: (1) to Client a limited, non-transferable, license to use the MoPix Platform under the terms and conditions of this Agreement and (2) to Members and other users of the CCAs a non-exclusive, non-transferable license to use the MoPix Platform which may include viewing and sharing the Client Content.
B. Content and CCA License. During the Term (as defined below) or until an individual CCA is canceled as specified herein, Client hereby grants: (1) to MoPix a limited, non-transferable, license to use the Client Materials and CCA under the terms and conditions of this Agreement including as may be necessary in connection with the creation and maintenance of the CCA, MoPix Platform and Site; and (2) to Members and other users of the MoPix Platform a non-exclusive, non-transferable license to use the MPA and CCAs which may include viewing and sharing the Client Content. Except for the limited license set forth in this Paragraph 5.B., Client expressly reserves all other rights in and to the Client Content.
If Client app is published through MoPix’s App Publisher account(s) MoPix shall pay to Client the percentage of the total sales revenue generated through sales of the CCAs across the MoPix Platform.
A. Ownership of Client Materials. All rights, title and interest in and to the Client Content (as provided by Client and as digitized or otherwise reformatted by MoPix for the individual CCA), the Client Confidential Information (as hereinafter defined) and all copyrights, trademarks, trade names and other proprietary rights inherent therein or appurtenant thereto (collectively, the “Client Materials”) are owned and retained exclusively by Client.
B. MoPix Materials. Subject to Client’s ownership of the Client Materials, all techniques, algorithms, methods, inventions and modifications and rights derivative of and appurtenant thereto owned or developed by MoPix including the MoPix Platform and all visual design elements of the individual CCAs, or licensed directly by MoPix from any third party, are and shall remain the property of MoPix (collectively, the “MoPix Materials”). Client agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the MoPix Materials.
C. Rights Clearance. Client shall be responsible for obtaining any permissions, licenses and clearances necessary to place any element of the Client Materials on the CCAs and to effectuate the license granted in Paragraph 5.B. and otherwise satisfy all Client obligations, representations and warranties in this Agreement.
D. MoPix Branding. MoPix shall have the right to include elements of its branding, including but not limited to its name, logos, trademarks, trade names, design and hypertext links in the individual CCAs published to the MoPix App and website for purposes of maintaining and promoting MoPix, the MoPix App and the MoPix Platform.
E. Publicity Restrictions. Unless otherwise agreed in writing, the Parties agree to not disclose, distribute or release information related to the MPA or individual CCAs to any third party (except employees, assigns, designees and subcontractors pursuant to this Agreement) until such time as the CCA appears for download to the general public. Thereafter, each Party may promote the existence, content and purpose of the CCAs on the MoPix Platform at its discretion.
A. Confidential Information. “Confidential Information” means information in the possession or under the control of a Party relating to the proprietary and/or trade secret information of that Party, or to the Party’s technical, marketing, product and/or business affairs, whether or not such information is in oral, graphic, written, electronic or machine readable form. Client’s Confidential Information shall also include the Client Materials and MoPix Confidential Information shall include the MoPix Materials. Confidential Information shall not include information that can be demonstrated: (1) to have been rightfully in the possession of the receiving Party from a source other than the disclosing Party prior to the time of disclosure of said information to the receiving Party (“Time of Receipt”); (2) to have been in the public domain prior to the Time of Receipt; (3) to have become part of the public domain after the Time of Receipt by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of the receiving Party, its employees, or agents; or (4) to have been supplied to the receiving Party after the Time of Receipt without restriction by a third party who is under no obligation to the disclosing Party to maintain such information in confidence.
B. Obligations. Each Party acknowledges and agrees that, in performing its obligations under this Agreement, it (and its employees, assigns, designees, subcontractor(s) and affiliates, if any) may have access to or be directly or indirectly exposed to Confidential Information of the other Party. Each Party shall hold confidential all Confidential Information of the other Party and shall not disclose or use such Confidential Information without the prior written consent of the other Party, except as otherwise expressly provided in this Agreement, or as may be required by law. Each receiving Party shall use reasonable measures and reasonable efforts to provide protection for the disclosing Party’s Confidential Information, including measures at least as strict as those used by the receiving Party to protect its own Confidential Information
MoPix Warranties. MoPix represents and warrants that: (1) all Services shall be performed so that the CCA once downloaded and installed by Members will perform on the MoPix Platform; (2) all of the Services to be performed hereunder will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (3) it has full authority to enter into this Agreement; (4) all obligations owed to third parties with respect to the activities contemplated to be undertaken by MoPix pursuant to this Agreement are or will be fully satisfied by MoPix, so that Client will not have any obligations with respect thereto; (5) MoPix is the owner of or otherwise has the right to use and distribute the MoPix Materials, and any other materials and methodologies used in connection with providing the Services hereunder including operating the MoPix Platform; (6) MoPix will comply with all applicable foreign, federal, state and local laws in the performance of its obligations hereunder; (7) the MoPix Materials and other materials and methodologies used by MoPix in fulfilling its obligations under this Agreement (except the Client Content and Work Product) shall not infringe upon any third party copyright, trademark, patent, trade secret or other third party right.
A. Client Warranties. Client represents and warrants that: (1) it has full authority to enter into this Agreement; (2) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Client pursuant to this Agreement are or will be fully satisfied by Client, so that MoPix will not have any obligations with respect thereto; and (3) Client has or will provide Client Content for the CCAs that does not infringe or violate copyright, patent, trademark, trade secret or other proprietary rights of any third party and does not constitute defamation against any third party; and (4) that it has obtained Errors and Omissions insurance coverage in sufficient amounts to protect and defend against any and all such claims and to defend and indemnify MoPix against any and all such claims.
B. DISCLAIMERS OF WARRANTY AND LIMITATION OF LIABILITY. THE MOPIX WARRANTIES SET FORTH IN THIS AGREEMENT ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY MOPIX. MOPIX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ABSENT WILLFUL MISCONDUCT, THE MAXIMUM LIABILITY INCURRED BY MOPIX SHALL BE THE TOTAL AMOUNT OF FEES, COSTS AND ROYALTIES RECEIVED FROM CLIENT.
8. INDEMNIFICATION AND INSURANCE
A. MoPix Indemnification. MoPix shall indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that the same is based upon a claim that: (1) if true, would constitute a breach of any of MoPix’s representations, warranties, or obligations hereunder; (2) arises out of the willful misconduct of MoPix; or (3) any of the MoPix Materials or Services or any portion thereof, infringes or violates any patents, copyrights, trade names, trade secrets, licenses, or other intellectual property rights of any third party.
B. Client Indemnification. Client shall indemnify, defend, and hold harmless MoPix, its directors, officers, employees and agents, with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that the same is based upon a claim that any of the Client Materials infringe or violate any patents, copyrights, trademarks, trade secrets, licenses, or other intellectual property rights or rights of privacy or publicity of any third party.
C. Indemnification Notice. In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of this Article 10. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party may not be entered into without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed.
9. TERM AND TERMINATION
A. Term. The term of this Agreement shall commence on the Effective Date and shall continue until the Client’s last CCA is removed from the MoPix Platform or until the Agreement is otherwise terminated in accordance herewith (the “Term”).
B. Termination. Either Party may terminate this Agreement by giving the other Party (the “Non-Terminating Party”) at least thirty (30) days prior written notice, if (1) the Non-Terminating Party has made any material misrepresentation herein or breached any of its material obligations hereunder and such material misrepresentation or breach (which shall be specified in such notice) is not cured within fifteen (15) days of such notice or such misrepresentation or breach cannot be cured within fifteen (15) days of such notice, (2) a petition in bankruptcy or for reorganization is filed by or against the Non-Terminating Party under any federal or state bankruptcy law or regulation now or hereafter in force and is not dismissed within thirty (30) days (unless prohibited by law); (3) the Non-Terminating Party makes an assignment for the benefit of creditors, or a receiver, trustee, liquidator or custodian is appointed for all or a substantial part of its property, and the order of appointment is not vacated within thirty (30) days; (4) the Non-Terminating Party assigns or encumbers this Agreement contrary to the terms hereof; or (5) all or a substantial part of the Non-Terminating Party’s property is sequestered and the order is not vacated within thirty (30) days.
C. Termination for Convenience. At any time during the Term, Client shall have the right to terminate this Agreement without cause upon ninety (90) days written notice to MoPix. Such termination shall be effective only upon MoPix receipt of (1) any outstanding Costs or fees for Continuing Services to be rendered through the current billing cycle at the date of notice and (2) any outstanding royalties due and owing. If client termination occurs before MoPix has collected all publishing & production fees client will not be liable for the difference.
D. Termination at MoPix Election. At any time during the Term, MoPix may elect to remove any CCA from the MoPix Platform should any third-party copyright or other infringement claims be brought to light. MoPix may elect to return to the CCA to the MoPix Platform once satisfied that doing so will not violate the rights of any party or subject MoPix to any liability.
E. Obligations Upon Termination or Expiration. Upon termination or expiration of this Agreement, MoPix shall immediately remove the CCAs from the MoPix Platform, return to Client all copies of the Client Materials and tangible copies of Client Confidential Information. ALL CLIENT CONTENT WILL BE DELETED FROM THE MOPIX PLATFORM AND FROM ALL MOPIX SERVERS UPON TERMINATION AND CANNOT BE RECOVERED THEREAFTER. Upon termination or expiration of this Agreement, Client must cease use of the MPA and all CCAs.
F. Single CCA Cancelation. If Client has more than one CCA on the MoPix Platform, a CCA may be canceled without terminating this Agreement provided Client maintains at least one CCA on the MoPix Platform. A CCA may be canceled by sending a formal, written request to MoPix via email to firstname.lastname@example.org. No other cancelation will be effective. MoPix will verify the request by phone or email to the designated Client contact and shall maintain the CCA on the MoPix Platform thereafter only for as long as is necessary to pay any outstanding amounts due MoPix. After such amounts are paid, MoPix will thereafter immediately remove the canceled CCA from the MoPix Platform and return to Client all copies of the applicable Client Materials. ALL CLIENT CONTENT RELATED TO THE CANCELED APP WILL BE DELETED FROM THE MOPIX PLATFORM AND FROM ALL MOPIX SERVERS UPON CANCELATION AND CANNOT BE RECOVERED THEREAFTER. Client must cease use of the APP after cancelation.
G. Survival. Upon expiration or termination of this Agreement, all provisions comprising the Parties’ express warranties provided herein, and in addition Articles 6 through 11, shall survive.
10. GENERAL PROVISIONS
A. No Agency or Joint Venture. The Parties agree and acknowledge that the relationship of MoPix with respect to the Client is that of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture, and neither Party is the other’s agent, partner, employee, or representative.
B. Non-Solicitation. During the Term and for twelve (12) months thereafter, Client agrees not to circumvent MoPix or solicit for hire and/or otherwise engage the services of any MoPix employee, subcontractor and/or agent (collectively “MoPix Personnel.”) Should Client breach this Paragraph 10.B., the Parties agree that damages, being hard to assess, may be contractually agreed upon and thus Client agrees to pay to MoPix an amount equal to thirty percent (30%) of the annualized compensation including benefits, scheduled to be paid to the applicable MoPix Personnel. Such payment is due and payable to MoPix no later than the first day of engagement of the applicable MoPix Personnel whether by Client or a third party benefitting from Client’s breach of this Paragraph 10.B.
C. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, or act of government provided that such Party gives the other Party written notice thereof promptly upon discovery thereof and uses its best efforts to cure the delay.
D. Partial Invalidity. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
E. No Waiver. The failure of either Party to partially or fully exercise any right or the waiver by either Party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
F. Notices. Any notice required or permitted to be sent shall be in writing and shall be sent in a manner requiring a signed receipt such as authenticated Internet transmission, authenticated facsimile transmission, FedEx or like courier delivery, or if mailed, then mailed by registered or certified mail, return receipt requested. Notices shall be sent to the addresses first set forth above to the attention of the signatories of this Agreement. Additionally, any notice of termination by Client must also be sent via email to email@example.com and notice of cancelation of the MPA or a CCA must be sent via email to firstname.lastname@example.org. Termination or cancelation by phone or through any other email addresses will not be considered valid. Notice is effective upon receipt.
G. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of California without regard to principles of conflict of laws. The Parties agree to submit to the exclusive jurisdiction over all disputes hereunder in the appropriate federal or state courts in the State of California located in Los Angeles County.
H. Dispute Resolution. All disputes arising under this Agreement will be resolved by final and binding arbitration before a retired judge or justice at the Los Angeles offices of Judicial Arbitration & Mediation Services, Inc. (“JAMS”) applying its then applicable rules. The prevailing party will be determined by the arbitrator and shall receive its reasonable outside attorney’s fees and costs in addition to any other award issued by the arbitrator. No punitive damages or other equitable relief shall be awarded in any arbitration proceeding and such damages are hereby waived. Judgment upon an arbitration award may be entered in any court having jurisdiction.
I. Entire Agreement. This Agreement, including any Schedules and/or Exhibits attached hereto or thereto, sets forth the entire agreement between the Parties and supersedes all prior negotiations, understandings and agreements between them concerning the subject matter hereof. No amendment or modification of this Agreement shall be made except by a writing signed by the Party to be bound.
END OF STANDARD TERMS AND CONDITIONS