Please read this Master Services and Software License Agreement (this “MSA”) carefully because this MSA and any SOWs (collectively, this “Agreement”) govern your use of the propriety interactive entertainment platform (the “Licensed Software”) and related services (together with the Licensed Software, the “Services”) offered by Xcite Interactive, Inc. (“Xcite”). Xcite is willing to provide the Services to you only upon the condition that you accept all the terms contained in this Agreement. By clicking the “accept” button below, you acknowledge that you have reviewed and accept this MSA. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that case, “you”, “your”, and
“Client” will refer to that entity.
1. SERVICES. Xcite will perform the Services described in statements of work executed by the parties (each, an “SOW”) in accordance with the terms and conditions set forth in such SOW and this Agreement. An SOW will form part of this Agreement and will be subject to the terms and conditions contained herein. An SOW may be amended only by written agreement of the parties. No term in an SOW will be deemed to amend the terms of this Agreement unless an SOW references a specific provision in this Agreement and provides that the SOW is amending only that specific provision of this Agreement and only with respect to Services performed pursuant to such SOW.
2. TERM. This Agreement commences on the date you first click the “accept” button below or the date indicated on an SOW, whichever occurs earlier, and unless terminated earlier by either party in accordance with the terms of this Agreement, will continue for the term specified in the applicable SOW (the “Term”).
(a) Payment. Client will compensate Xcite amounts agreed upon in any SOW (the “Fee”) in accordance with the terms and conditions set forth in such SOW and this Agreement. The Fee does not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If Xcite is required to pay any such amounts, Client shall reimburse Xcite in full.
(b) Payment Contact: Client is responsible for providing Xcite with any and all instructions that is needed in order to make sure invoices are processed and paid accordingly. If there are any questions or issues with the Xcite’s invoice, it is Client’s responsibility to reach out to Xcite Interactive within thirty (30) days allowing the Xcite Interactive to make all the necessary corrections to receive payment on time.
Xcite Interactive A/R & Invoice Contact:
Name: Xcite Interactive, Inc.
(c) Late Payment. Fees must be received on the due date listed on an SOW or invoice. If any payment owed is not received by Xcite within thirty (30) days after such fee becomes due, such unpaid amounts will bear interest from the date the payment was due until paid, at a rate equal to the lesser of one percent (1%) per month or the highest rate permitted by applicable law. In the event of any dispute between the parties concerning the Fee, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.
4. SOFTWARE LICENSE
(a) Grant of License. In consideration of the Fee and subject to the terms and conditions of this Agreement, Xcite grants to Client, a non-exclusive, royalty free, non-transferable and non-sublicensable license to access and use the Licensed Software for the purpose of conducting interactive games or related content (the “Interactive Content”) for mobile device users (including the right to reproduce, adapt and display the Interactive Content to mobile device users) and advertising or promoting the Client, its products, and Client’s sponsors and such sponsor’s respective products (“Permitted Uses”) via such Interactive Content. Client will not at any time and will not permit any third-party to, directly or indirectly: (i) use the Licensed Software beyond the scope of rights expressly granted in this Agreement; (ii) except for the Permitted Uses, modify or create derivative works of the Licensed Software; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any component of the Licensed Software; (iv) except for the Permitted Uses, sell, resell, rent or lease use of the Licensed Software to any other third-party; (v) use the Licensed Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any third party rights, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Licensed Software (or any data or content therein); (vii) access or search the Licensed Software (or download any data or content therein) through the use of any engine, software, tool, agent, device or mechanism; or (viii) make copies of the Licensed Software.
(b) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Client expressly acknowledges that, as between Client and Xcite, Xcite owns all worldwide right, title and interest in and to the original and any copies of the Licensed Software made by Client with Xcite’s consent. From time to time Client or its employees, contractors, or representatives may provide Xcite with suggestions, comments, feedback or the like with regard to the Licensed Software (collectively, “Feedback”). Client hereby grants Xcite a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Xcite’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Licensed Software.
(c) Proprietary Rights. Client recognizes that Xcite regards the Licensed Software as its proprietary and confidential information, including without limitation, confidential trade secrets of great value (“Confidential Information”). Client agrees not to provide or to otherwise make available in any form, Confidential Information, or any portion thereof, to any person other than employees of Client without the prior written consent of Xcite. Client further agrees to treat Confidential Information with at least the same degree of care with which Client treats its own confidential information of similar importance and in no event with less than a commercial reasonable degree of care.
(a) Except as set forth in Section 5(b), Xcite expressly acknowledges that, as between Xcite and Client, all trademarks, trade names, artwork, designs, logos, files, images, graphics, photographs, copy, works made for hire, materials, content, indicia of persona or likeness associated with Client (including without limitation any name(s), image(s), likeness, voice, photograph, signature of Client or any individuals associated with Client) (the “Client Trademarks”) and all other materials provided to Xcite hereunder is, and shall at all times be the sole and exclusive property of Client.
(b) Solely to the extent necessary for Xcite to operate, improve, and provide the Licensed Software and Services pursuant this Agreement, and with Client’s approval, Client hereby grants to Xcite a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform, and modify the Client Trademarks during the term of this Agreement.
(c) To the extent Client provides Client Trademarks to Xcite for Xcite to perform Services pursuant this Agreement, Client represents and warrants that (i) it has and will continue to have, during the Term of this Agreement, all necessary rights and licenses for Xcite’s use of the Client Trademarks and (ii) Xcite’s use of the Client Trademarks in accordance with this Agreement will not violate any applicable laws, rules, or regulations or cause a breach of any agreement or obligations between Client and any third party. Client will defend, indemnify and hold Xcite harmless from and against all third party claims, damages, liabilities, losses, expenses and costs arising out of or resulting from Client’s breach of this Section 5(c). Client will not settle or otherwise compromise Xcite’s rights without Xcite’s prior written consent.
6. IMPLEMENTATION OF SERVICES.
(a) Specifications and Deadlines. Client acknowledges and agrees that unless otherwise agreed by the parties or specifically provided in any agreed upon SOW, it is the sole responsibility of Client to provide the copy, style guide, fonts, high resolution logos and other applicable content to be used in connection with the Services and in accordance with a deadline established by Xcite. Furthermore, it is the sole responsibility of the Client to implement the Services and purchase any equipment (e.g., a computer for software playback, I/O connection boxes, etc.) required for such implementation. Client agrees that a failure of Client to comply with the reasonable deadlines or formats established by Xcite, in a manner that adversely affects Xcite (to be determined by Xcite in its reasonable discretion), shall be deemed a waiver by Client of those specific Services that cannot be delivered as a result of Client’s non-compliance until such time as Client complies with established deadline and formats. Xcite shall not have any liability arising from such waiver.
(b) Execution Plan. Prior to the performance of the Services, Xcite shall prepare and deliver to Client an execution plan (“Execution Plan”) outlining in reasonable detail (i.e., deadlines, formats, etc.) how the Services will be executed by Xcite during the Term. Furthermore, the parties understand and agree the Execution Plan is a guide only, used to facilitate communications and fulfillment of the Services, and as such, is subject to change and is not to be construed as a legally binding document.
(c) Revision Limit and Change Orders. Except as otherwise specifically provided in any SOWs agreed upon by both parties, Xcite shall be solely responsible and shall bear all costs associated with the initial production and up to two (2) Client revisions submitted in writing by Client to Xcite (the “Revision Limit”), of the Services provided under this Agreement and routine maintenance of the same. Client shall bear all costs associated (to be determined by Xcite in its sole discretion) with any modifications beyond the Revision Limit to such Services during the Term set forth in a written change order issued by Xcite to Client (a “Change Order”). The parties understand and agree the Change Order is supplemental to the Agreement and subject to additional fees thereto, and as such, is subject to change and is not to be construed as a legally binding document.
(d) Xcite may freely engage subcontractors in connection with its performance as contemplated under this Agreement, provided that Xcite shall be fully responsible to Client for performance of this Agreement, regardless of whether it chooses to render performance through employees, through subcontractors, or otherwise.
7. WARRANTY DISCLAIMER. THE LICENSED SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, XCITE EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
8. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE AND REGARDLESS OF THE CAUSE OF ACTION FROM WHICH THEY ARISE, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING AND EVEN IF THE ESSENTIAL PURPOSE OF A REMEDY FAILS. EXCEPT FOR A PARTY’S BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S LIABILITY EXCEED FIVE (5) TIMES THE COMPENSATION OWED OR PAYABLE TO XCITE UNDER THIS AGREEMENT.
a) Policy Coverage: Xcite, at its own expense, shall use reasonably diligent efforts to carry and maintain, the following types and amounts of insurance coverage:
i) Commercial general liability/public liability insurance including premises-operations, broad form property damage, products /completed operations, independent contractors, personal injury and advertising injury and liability assumed under an insured contract with limits of at least US $5,000,000 per occurrence and US $5,000,000 general aggregate.
ii) If an automobile is used by Xcite in connection with its performance under this Agreement, then commercial automobile liability insurance for any non-owned automobile used in its performance under this Agreement is required in the minimum amount of US $1,000,000 combined single limit;
iii) Professional liability (errors and omissions) insurance in the minimum amount of US $5,000,000 each claim/ US $5,000,000 aggregate.
(b) Client as an Additional Insured: At Client’s request, Client shall be named as an “Additional Insured” on Xcite’s commercial general liability, commercial auto liability, and professional liability policies listed above. The insurance limits described above in 9(a) may be achieved by a combination of primary and umbrella/excess liability policies.
(c) Evidence of Insurance: Prior to the start of Services under this Agreement and, during the Term of this Agreement, annually upon the anniversary date(s) of the insurance policy’s renewal date(s), Xcite, at Client’s request, deliver to Client satisfactory evidence of the described insurance coverage on a certificate of insurance. All required insurance will be placed with carriers with minimum A.M. Best ratings of A-VII (or that have a comparable rating from an equivalent regulatory rating agency or that meet the minimum financial guidelines of the insurance regulatory authority of the country where the policy is issued).
(d) Miscellaneous Requirements: All coverage must include a waiver of insurer’s rights of subrogation against Client. Xcite will be solely responsible for any deductible or self-insurance retentions. Xcite’s insurance shall be primary and non-contributory. The coverage territory for the stipulated insurance shall be on a worldwide basis.
(e) Upon the written request of Client, Xcite will provide Client with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section.
(a) Termination for Cause. This Agreement will terminate automatically upon the bankruptcy or insolvency of either party. If either party materially defaults in the performance of any of its obligations under this Agreement, which default (i) if of a non-monetary nature, is not substantially cured within thirty (30) days after written notice is given to the defaulting party specifying the default or in the event that such default is not the type which is susceptible of cure within such thirty (30) day period, then such longer period so long as the defaulting party commences to cure within such thirty (30) day period and continues to diligently pursue the cure of the default to completion, or (ii) if of a monetary nature and there is no dispute about the invoice or the work or the expense with respect to which an invoice has been issued, is not cured within ten (10) days after notice is given to the defaulting party specifying the default, the party not in default may, by giving written notice thereof to the defaulting party, terminate the Agreement, as of a date specified in such notice of termination.
(b) Effect of Expiration or Termination. Upon expiration or termination of this Agreement, the license granted pursuant to Section 4(a) and 5(b) shall expire, and the following Sections shall survive: 3, 4(b), 4(c), 5(c), 7, 8, 10(b), and 12 through 19.
NOTICES. Unless otherwise specified, all notices and communications in accordance with or related to this Agreement shall be in writing and may be served either personally on the authorized representative of the receiving party by email, facsimile, courier or express delivery, or certified mail. All notices and communications will be sent to the following addresses: (a) if to Client, to the address set forth in the applicable SOW; and (b) if to Xcite, to:
Xcite Interactive, Inc.
6701 Center Drive, Suite 480
Los Angeles, CA 90045
Attention: Contracts Department
With a copy (which shall not constitute notice) to:
Fenwick & West LLP
228 Santa Monica Boulevard
Santa Monica, CA 90401
Attention: Andrew Klungness
Such addresses may be changed by notice given by one party to the other pursuant to this Section.
12. GOVERNING LAW; JURISDICTION. Regardless of its place of negotiation, execution, or performance, this Agreement is subject to and shall be construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, New York and the parties irrevocably consent to the personal jurisdiction and venue therein.
13. DISPUTE RESOLUTION. If any dispute arises out of or in relation to this Agreement, or a breach thereof, the parties will endeavor to first settle the dispute by engaging in good faith discussions. If the parties fail to resolve issues by discussion within thirty (30) days after written notice of the dispute has been given by one party to the other, claims asserted against or by either party shall be decided by a dispute resolution procedure, including mediation and arbitration. Furthermore, the parties are free to exercise any and all rights under the law.
14. FORCE MAJEURE. Notwithstanding anything to the contrary contained in this Agreement, Xcite shall use reasonable efforts to provide the Services described herein; provided that where any Services to be provided to Client under this Agreement is prevented by technical or mechanical difficulties, preemptions, strikes, labor disputes, boycotts, riots, war or national emergencies or disasters, terrorist acts or threats of terrorist acts, governmental restrictions, acts of God, or any other event beyond the reasonable control of Xcite, then the performance of such Services shall be excused, and the parties shall agree to a new schedule for completion of the Services upon written notice.
15. RELATIONSHIP TO THE PARTIES. It is expressly understood and acknowledged by the parties that it is not the intention or purpose of this Agreement to create any type of corporate relation, joint venture, partnership, principal and agent, employee and employer relationship between or among any or all of the parties.
16. SECTION HEADINGS. The section headings in this Agreement are for purposes of reference only and shall not limit or affect any of the terms herein.
17. NON-ASSIGNMENT; BINDING AGREEMENT. Client shall not assign any portion of the Services or assign any of the duties, rights, or any claim relating to the Agreement without the prior written approval of Xcite. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement shall be binding upon the parties and their heirs, successors and assigns.
18. ENTIRE AGREEMENT; MODIFICATION. This Agreement and any SOWs constitute the entire Agreement between the parties relating to the subject matter herein and supersedes all other prior or contemporaneous agreements, if any, expressed or implied, whether written or oral. This Agreement may be changed only by a written instrument signed by both parties.
19. MISCELLANEOUS. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Unless otherwise specified, no waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.