1.1 “Agreement” means these Terms and Conditions together with the Proposal (as defined below) set out in Part A.
1.2 Confidential Information” means any material or information disclosed by one party to the other that is marked or otherwise identified as confidential at the time of disclosure, or which given facts and circumstances under which such information is disclosed, should reasonably be considered confidential and proprietary. The terms of the Agreement shall be deemed Confidential Information of each party.
1.3 “Copyright Materials” means non-confidential marketing materials of any kind, which may contain text, content, graphics, images, logos, Marks and icons, including, without limitation, content used or displayed on websites that are agreed between the parties as applicable to a Proposal (as defined in paragraph 1.3 below).
1.4 “Co-operative Marketing Program” means promotion-related marketing and other commercial activities mutually agreed to in writing by the parties in Part A of this Agreement (the Proposal”)
1.5 “Marks” means any trademarks, trade names, service marks, commercial symbols, slogans, trade dress or logos, domain names agreed between the parties as applicable to a Proposal.
1.6 “Website” means any website on the World Wide Web identified in Proposals as applicable to the Proposal.
1.7 All other defined terms set out herein shall have the meaning given to them in the Proposal unless otherwise defined.
2. SERVICES AND PAYMENT
2.1 Each party warrants that it shall carry out its obligations set out in the Proposal in accordance with the terms of this Agreement, within the timeframes agreed between the parties, and exercising due skill and care.
2.3 Each party shall designate in writing a representative to manage the Co-operative Marketing Program.
2.4 The parties acknowledge and agree that the performance of their mutual obligations under this Agreement shall constitute sufficient and valuable consideration for the purposes of this Agreement, and that neither party shall make any claim for payment or other financial compensation from the other party, other than is expressly permitted under this Agreement.
3. USE OF MARKS AND COPYRIGHT MATERIAL.
3.1 Limited License. The parties may use the other’s Marks and Copyright Materials solely in a Cooperative Marketing Program solely for the purpose expressly permitted and expressly agreed to in writing in a Proposal. Such use is subject to: (1) each party obtaining the prior written consent of an authorized signatory of the other party; and (2) the proposed use of any Mark of a party complying with such party’s branding guidelines, as may be amended from time-to-time. Neither party shall use the other’s Marks or Copyright Materials or those of its affiliated companies without the other’s express written permission, other than as expressly provided for in this Agreement.
3.2 Mutual Restrictions on Marks. Each party acknowledges that its ability to use any of the other party’s Marks is not a quality assurance guarantee or endorsement of the other party or of any its products or services and agrees that it will not make any statement or represent to such effect. Without limiting the foregoing, unless expressly agreed otherwise in writing by the parties, each party shall cease all use of the other party’s Marks and Copyright Materials upon conclusion or termination of the Co-operative Marketing Program for which such use was approved or upon termination or expiration of this Agreement whichever occurs earlier or as otherwise requested in accordance with this Agreement.
3.3 Each party represents, warrants, and covenants that it does not and will not use the other party’s Marks (or any part thereof), or create any co-branded Mark or any Mark confusingly similar with the other party’s Mark, as a feature or design element of another mark except as expressly authorized or approved in writing by the other party.
3.4 Each party reserves the right to terminate immediately the other party’s use of any of its Mark or Copyright Materials by giving written notice to the other party where it has reasonable cause to believe that the other party has breached the terms of this Agreement.
3.5 Reservation of Rights. Nothing herein transfers or assigns to a party any right, title or interest including any intellectual property right in or to the other party’s intellectual property including, without limitation in any of its Marks or Copyright Materials. All goodwill associated with the use of the Marks of a party by the other party will inure to the benefit of the party licensing the other party to use the Marks.
3.6 Ownership of Materials. Each party shall retain ownership of the materials it creates under this Agreement and all intellectual property rights therein.
3.7 Proprietary Notices. The receiving party will include in any of its materials or uses, including Website uses that incorporate Marks and/or Copyright Materials of the granting party, applicable copyright, trademark and other proprietary rights notices.
4. MARKETING RESTRICTIONS.
4.1 No Suggestion of Affiliation, Endorsement, Sponsorship or Partnership. Neither party may in any way suggest or imply through use of the other’s Copyright Materials or Marks or otherwise that its products or services or Website are affiliated with, endorsed, or sponsored by or created in association with, the other party. Each party reserves the right to require disclaimers to be included on the other party’s Website(s) and advertising and marketing materials which use the party’s Marks or Copyright Materials as it deems necessary.
4.2 Use of Materials upon Termination. Upon any termination or expiration of this Agreement, or upon the request of a party, all use by a party of the other party’s Copyright Materials and Marks hereunder shall cease within thirty (30) days from the date of termination, expiration or request. Copies of any of the other party’s Copyright Materials and Marks (in any form or format, including copies stored on computer storage devices) shall either be returned or destroyed within three (3) business days of any such termination or expiration. At the written request of either party, the other party shall provide a written statement certifying that the foregoing has occurred.
4.3 Each party shall:
4.3.1 not engage in deceptive, misleading, illegal, or unethical practices that may be detrimental to the other party or the other party’s products or services and any representations that a party makes about the other party’s products or services shall be fair and accurate;
4.3.2 not make any representations, warranties, or guarantees to end users concerning the other party’s products and services without the other party’s prior express written authorization;
4.3.3 not make any representations, warranties, or guarantees outside of or beyond the exact scope of any representations, warranties or guarantees specifically authorized by the other party in writing;
4.3.3 comply with all applicable laws, regulations or orders in marketing the other party’s products and services and in performing its duties with respect to the other party’s products and services, including, without limitation, data protection and privacy laws.
5. CONFIDENTIAL INFORMATION.
5.1 Except as otherwise expressly provided in this Agreement, each party agrees that all Confidential Information will be used only for purposes of this Agreement, and will not be disclosed by the receiving party, its agents, representatives, or employees without the prior written consent of the disclosing party. The receiving party shall permit access to Confidential Information only to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. The restrictions on the use or disclosure of any Confidential Information shall not apply to any such Confidential Information that was disclosed in response to a valid order by a court or other governmental body, provided, however, that the receiving party shall provide the disclosing Party with prior written notice of such disclosure in order to permit such disclosing party to seek confidential treatment of such Confidential Information.
5.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include material or information which the receiving party can demonstrate by dated written records: (i) is generally available to the public without breach of this Agreement by the receiving party, its agents, representatives, or employees; (ii) was rightfully in the receiving party's possession prior to disclosure to it by the disclosing Party; (iii) was independently developed by the receiving Party without use of or reference to any of the disclosing party’s Confidential Information; or (iv) was rightfully received by the receiving party from a third party without a duty of confidentiality.
5.3 The receiving party agrees that the disclosing party would suffer immediate and irreparable harm in the event any Confidential Information is used or disclosed in a manner not permitted by this Agreement. In the event of a breach or the threatened breach of the provisions of this Agreement, the disclosing party shall be entitled to injunctive relief restraining the receiving party from such breach or threatened breach and to enforce the provisions herein in any state or federal court located in the State in which the disclosing party maintains its principal place of business. Nothing herein shall be construed as prohibiting the disclosing party from pursuing any other remedy against the receiving Party on account of such breach or threatened breach.
6. LEGAL RELATIONSHIP.
6.1 No Joint Venture. Nothing contained herein shall create or suggest any affiliation, association, partnership, agency or joint venture between the parties. Neither party shall represent itself as the associate, partner, agent or joint venturer of the other in any way whatsoever. Neither party is authorized to accept orders or make contracts in the other party’s name, or to transact any business in the name of the other, or to assume or create any obligation or responsibility binding upon the other in any matter whatsoever, unless a party has prior specific written consent from the other to do so.
6.2 Expenses. Each party shall be responsible for any and all expenses it incurs in connection with its performance of this Agreement, unless otherwise expressly provided herein.
6.3 No Entitlement. Neither party is entitled to share in nor has any claim to any subscription, advertising or other revenues the other may realize in connection with the other party’s Website or other marketing activities except as expressly agreed in writing.
7. NO WARRANTY.
7.1 Except as expressly stated in this Agreement, neither party has made or relied on any warranties or representations (express or implied by operation of law or otherwise) regarding the scope, duration or success of any co-operative marketing effort which Money20/20 or the Partner or both may undertake.
7.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY’S MARKS AND COPYRIGHT MATERIALS ARE PROVIDED ON AN ‘AS IS’ BASIS WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND. EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR PARTICULAR PURPOSE AND THOSE ARISING BY CUSTOM OR USAGE OF TRADE.
8. INDEMNITY AND EXCLUSIONS OF LIABILITY.
8.1 Each party agrees to indemnify the other party (the “Indemnified Party”) from awarded judgments (including awarded damages and reasonable lawyers’ fees and disbursements) from third party claims resulting from the authorized use of Marks and Copyright Materials by the other party strictly in accordance with the terms of this Agreement which violates a third party right; provided that the party seeking indemnification (the “Indemnified Party”) promptly notifies the other party (the “Indemnifier”) of such claim; (ii) the Indemnifier shall have sole control of the defense and/or settlement thereof; (iii) the Indemnified Party furnishes to the Indemnifier on request all reasonable information in the Indemnified Party’s possession or control for such defense; (iv) the Indemnified Party will not admit any such claim and/or make any payments with respect to such claim without the prior written consent of an authorized signatory of the Indemnifier; and (v) the Indemnified Party shall, at the Indemnifier’s expense co-operate with, and provide such assistance to the Indemnifier in the defense of such claims as reasonably requested by the Indemnifier.
8.2 WITH THE EXCEPTION OF A BREACH OF SECTIONS 3 OR 5 OR A MISAPPROPRIATION OR INFRINGEMENT BY EITHER PARTY OF THE OTHER PARTY’S MARKS, COPYRIGHT MATERIALS OR OTHER INTELLECTUAL PROPERTY OR INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT.
8.3 The exclusions set out herein shall apply to each party and their affiliated companies as well as such affiliated companies’ directors, officers, employees and independent contractors.
All notices and other communications required or permitted under this Agreement shall be in writing and notices shall be deemed sufficiently given three (3) days after they are sent by first class mail, return receipt requested, and one (1) day after they are sent by overnight courier or upon receipt if delivered by hand to the receiving party at the address as the receiving party may have provided for the purposes of receiving notices.
10. TERM AND TERMINATION.
10.1 The term of this Agreement shall be through October 30, 2017 unless terminated earlier in accordance with this Agreement.
10.2 Either party may terminate this Agreement:
10.2.1 on immediate written notice if the other party has committed a material breach of its obligations under this Agreement;
10.2.2 on immediate written notice if the other party becomes insolvent; or
10.2.3 for any reason on providing thirty (30) working days’ written notice to the other party.
Neither party may assign or delegate all or any portion of this Agreement or its required performance hereunder to any other individual, firm or entity, by operation of law or otherwise, without the express written consent of the other party . Any attempted assignment or delegation in violation of the foregoing shall be null and void ab initio. Notwithstanding the forgoing, Money20/20 may assign this Agreement to any of its affiliates, in connection with a re-organization or the sale of all or a substantial portion of the assets or business of Money20/20.
No public announcements relating to this Agreement may be made without the prior written approval of both parties.
The following provisions of this Agreement survive the termination or expiration of this Agreement: 5, 6, 7, 8, 14, and 16.
14. GOVERNING LAW AND JURISDICTION.
14.1 This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York and the federal and state courts located in the City of New York, State of New York shall have exclusive jurisdiction to settle any dispute, which may arise out of, under, or in connection with this Agreement.
14.2 The parties acknowledge and agree that execution of this Agreement by electronic or digital signature shall be effective execution under the laws of New York.
15. DELEGATE PASSES
For the avoidance of doubt, the Partner acknowledges and agrees that in respect of any delegate passes for the Event that are offered to the Partner:
(i) The Terms of Attendance and Participation set out at shall apply to such attendance. In the event of any conflict between such terms and this Agreement, the terms of this Agreement shall prevail;
(ii) such delegate passes shall have a nil value and are offered free of charge;
(iii) the delegate passes are offered to enable the Partner to promote its own brand; and
(iv) the Partner will be entitled but under no obligation to attend the Event.
16. ENTIRE AGREEMENT, AMENDMENT, NON-WAIVER AND SEVERABILITY.
This Agreement constitutes the entire understanding and agreement of the parties and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. No amendment to or modification of this Agreement shall be binding upon either party unless such amendment or modification is made in writing, dated and executed by an authorized representative of each party. Neither party’s failure to exercise any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
This Agreement may be executed in two or more identical counterparts, facsimile counterparts or electronic counterparts, each of which when executed by a party shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.