BIDFILTER EARLY ACCESS PROGRAM AGREEMENT
- BidFilter has developed patent-pending technology that protects client brands by identifying and blocking unwanted ads served through header bidding platforms (the "Technology").
- BidFilter is promoting the Technology on a beta basis through an Early Access Program (the "EAP").
- Participant is a website owner who desires to participate in the EAP in exchange for providing feedback that will enable BidFilter to improve and promote the Technology.
- Participant recognizes that the Technology will analyze Participant's website and advertisements for the purpose of identifying and blocking unwanted advertisements, and will generate analytic data that will be sent to BidFilter ("Analytic Data").
- BidFilter does not knowingly collect any personally identifiable information ("PII") from Analytic Data.
- Each of the Parties recognizes that, while the Technology is provided to Participant free of charge during the EAP, BidFilter's ultimate goal is to terminate the EAP and sell or license the Technology to clients (including, potentially, Participant) for a fee pursuant to the terms of a separate and future agreement.
- Now, therefore, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as set forth herein.
License and Obligations.
- Pursuant to and for the term of this Agreement, BidFilter grants to Participant a royalty-free, revocable, non-exclusive license to the Technology solely for the purpose of and to the extent necessary for the blocking of unwanted ads served through header bidding platforms on Participant's website(s). Participant acknowledges and agrees that BidFilter is the sole and exclusive owner of the Technology, Analytic Data, and of all intellectual property rights therein, including without limitation copyrights, trademarks, trade secrets, patents and other proprietary rights, title to all of which are hereby expressly reserved. Nothing herein shall be deemed to grant any rights in or to the Technology to Participant.
- Participant may be required to implement code on Participant's website as is reasonably requested by BidFilter for the sole purpose of implementing the Technology (the "Implementation Code").
- Participant agrees that it will not directly or indirectly, use, reproduce, re-transmit, re-publish, resell, license, sublicense, decompile, disassemble, reverse engineer, derive other work from, or transfer the Technology for any purpose other than as expressly permitted in this Agreement.
- Participant agrees to limit the use of the BidFilter Technology to 50 million monthly pageviews on Participant's website, unless otherwise agreed between the Parties.
Marketing and Development.
- BidFilter shall be entitled to market and promote the Technology and the EAP, including Participant's participation in the EAP (such as by using Participant's name and/or logo in BidFilter's marketing materials); provided, however, that Participant may inform BidFilter of any unacceptable marketing, and BidFilter shall modify and cease such marketing within a commercially reasonable amount of time.
- BidFilter may use Analytic Data it has collected to help market and promote the Technology.
- Participant shall and hereby grants to BidFilter a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Technology any suggestions, enhancement requests, recommendations or other feedback provided by Participant or culled from Analytic Data relating to the Technology or potential future enhancements thereto.
- Term. This Agreement shall commence on the Effective Date and continue until the earlier of: (i) termination by either Party with five (5) days' advance written notice to the other Party, for any reason or no reason whatsoever, or (ii) BidFilter's termination of the EAP.
- Effect of Termination. In the event of any termination of this Agreement, Participant shall remove from Participant's website the Implementation Code within 5 business days. Sections 3, 6, 7, and 10 through 18 of this Agreement shall survive termination.
- During the course of this Agreement, each Party may disclose to the other certain non-public information or materials relating to a Party's products, intellectual property, business, marketing programs and efforts, and other confidential information and trade secrets ("Confidential Information"). Notwithstanding the foregoing, Confidential Information does not include (a) the existence of the Technology or the EAP , (b) Participant's participation in the EAP, or information that: (c) is or becomes publicly available through no breach by the receiving Party of this Agreement; (d) was previously known to the receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (e) was acquired from a third Party without any breach of any obligation of confidentiality; (f) was independently developed by a Party hereto without reference to Confidential Information of the other Party; or (g) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that Party receiving such subpoena or order shall promptly inform the other Party in writing and provide a copy thereof, and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
- Except as expressly provided herein, the receiving Party will not use or disclose any Confidential Information of the disclosing Party without the disclosing Party's prior written consent, except disclosure to and subsequent uses by the receiving Party's employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving Party's obligations under this Section.
- Subject to the foregoing nondisclosure and non-use obligations, the receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving Party uses to protect the receiving Party's own Confidential Information and trade secrets, and in no event less than reasonable care.
- Each Party acknowledges that due to the unique nature of the other Party's Confidential Information, the disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
- Neither Party shall remove or alter any proprietary markings (e.g., patent, copyright and trademark notices) on the other Party's Confidential Information.
- Independent Contractors. Nothing contained in this Agreement shall be deemed or construed to place the Parties in the relationship of clients, joint venturers, principal-agents, or employer-employee, it being understood that the Parties hereto are and will remain independent contractors in all respects and neither Party shall have any right to obligate or bind the other in any manner whatsoever. For clarification, the defined term "Participant," as used in this Agreement, is a term of art without legal significance.
- Assignment. Neither this Agreement nor any of the rights or obligations contained herein may be assigned or transferred by either Party without the prior written consent of the other Party.
- Authority to Contract. Each of the Parties hereto represents and warrants that it has full right and power to enter into this Agreement, to perform all obligations to be performed by it hereunder, and to grant all rights hereunder granted without violating the legal or equitable rights of any other person or entity, and that the execution and performance of this Agreement will not conflict with or result in a breach of or default under any of the terms or conditions of any other agreement to which either Party has agreed, or is a party, or may be bound.
- NO WARRANTIES. BIDFILTER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE TECHNOLOGY AND/OR THE EAP, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NO ENCUMBRANCE, OR TITLE, IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BIDFILTER DOES NOT WARRANT THAT TECHNOLOGY OR EAP WILL MEET PARTICIPANT'S REQUIREMENTS, OR THAT THE OPERATION OF THE TECHNOLOGY OR EAP WILL BE UNINTERRUPTED OR ERROR-FREE. BIDFILTER DISCLAIMS ALL IMPLIED LIABILITY FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE TECHNOLOGY OR EAP PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS, REPRESENTATIONS, OR OTHER DEFECTS ARISING OUT OF THE FAILURE TO THE FURNISH THE TECHNOLOGY OR EAP, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING. BIDFILTER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF BIDFILTER, OR ITS AGENTS OR REPRESENTATIVES.
- PARTICIPANT'S RESPONSIBILITY FOR LOSS OR DAMAGE. PARTICIPANT AGREES THAT PARTICIPANT'S USE OF THE TECHNOLOGY OR EAP IS AT PARTICIPANT'S SOLE RISK. PARTICIPANT WILL NOT HOLD BIDFILTER OR ITS LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM PARTICIPANT'S ACCESS TO AND/OR USE OF THE TECHNOLOGY OR EAP.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL BIDFILTER BE LIABLE TO PARTICIPANT FOR ANY CLAIMS ARISING FROM PARTICIPANT'S USE WITH THE TECHNOLOGY OR EAP, INCLUDING WITHOUT LIMITATION FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO BIDFILTER OR ITS LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH PARTICIPANT'S USE OF THE TECHNOLOGY OR EAP. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
- Merger; Modification. This Agreement constitutes the entire agreement with respect to the subject matter contained herein and supersedes all previous communications and agreements between the Parties pertaining to the subject matter hereof, whether written or oral. The terms of this Agreement may not be modified, waived, amended, discharged, terminated, or supplements, or otherwise changed, except by a written document executed by an authorized representative of each Party.
- No Waiver. A waiver by either Party of any of the terms or conditions of this Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof, or any other term or condition of this Agreement. All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party.
- No Third Party Beneficiaries. This Agreement is not for the benefit of any third party and shall be deemed not to give any right or remedy to such third party, whether referred to herein or not.
- Severability. If any provision of this Agreement, as applied to either Party or to any circumstance, shall be adjudged by a court of competent jurisdiction to be void or unenforceable, whether at law or in equity, then such determination shall in no way affect any other provision of this Agreement, or the validity or enforceability of this Agreement.
Controlling Law; Arbitration; Remedies in Aid of Arbitration.
- This Agreement shall be construed and interpreted in accordance with the laws of the State of California.
- This Agreement shall be treated as though it were executed and performed in Orange County, California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles).
- The Parties agree that any dispute, of any nature whatsoever, arising between the Parties out of this Agreement or the resulting transactions, shall be decided by neutral, binding arbitration before a single arbitrator under the auspices of the Judicial Arbitration and Mediation Service ("JAMS") in Orange County, CA, in accordance with JAMS' Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing Party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee and reasonable attorney's fees) to the prevailing Party.
- This agreement to arbitrate will not preclude either Party from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either Party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, to preserve the intellectual property rights of either Party. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING "EQUITABLE RELIEF" WILL BE THE FEDERAL AND STATE COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
- The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
- Notices. All notices required or permitted to be given under this Agreement must be in writing. BidFilter shall give any notice by email sent to the most recent email address, if any, provided by Participant to BidFilter. You agree that any notice received from BidFilter electronically satisfies and legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH BIDFILTER IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY BIDFILTER OF AN EMAIL TO THAT ADDRESS. You shall give any notice to BidFilter by means of: postage prepaid, to BidFilter, LLC, 26060 Towne Centre Dr., Foothill Ranch, CA 92610
- Attorneys' Fees. If any action is necessary to enforce the provisions of this Agreement, the prevailing party in such action shall be entitled to an award of reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which it may otherwise be entitled.
- Headings. Section headings used in this Agreement are for convenience of reference only and shall not in any way affect the interpretation of any section of this Agreement or the Agreement itself.
Effective Date: July 26, 2019