STANDARD TERMS & CONDITIONS FOR FEM TECHNOLOGY

These Standard Terms & Conditions for the FEM Technology (“Agreement”) are entered into by FEM, Inc. (“FEM”) and the entity executing an order form (“Order Form”) (“Company”).

  1. OVERVIEW
  1. Overview.  FEM has developed certain algorithms and other technology (“FEM Technology”) to enable publishers to offer streams of contextualized, targeted digital video content (“Recommendations”) to end users on a company’s owned and operated digital properties or third party digital properties (“Syndication”), and to view analytics of such content (“Analytics Dashboard”). Company operates certain digital properties  (each a “Company Offering”) on which it distributes video content, and Company and its Affiliates wish to utilize the FEM Technology for Recommendations and/or Syndication as set forth in an Order Form).  
  2. Order Form.  The FEM Technology will be provided to Company or its Affiliates as set forth in an Order Form that must be agreed to by both parties.  Each Order Form will be subject to the terms of this Agreement.  In the event of any conflict or inconsistency between the terms of this Agreement and any Order Form, the terms of the Order Form(s) shall govern.
  3. Definitions. Capitalized terms not defined in this section are defined contextually in the Agreement.

Affiliate” means any company that directly or indirectly controls, is controlled by, or is under common control with a party or its successor entity.

Company Content” means text, images, videos or other content elements selected by Company and designated in an Order Form.

Third Party Offering” means the third party digital properties set forth in an Order Form that FEM has licensed the FEM Technology.

Documentation” means technical documentation provided with the FEM Technology.

Third Party Content means text, images, videos or other content elements set forth in an Order Form that FEM has licensed for syndication via the FEM Technology.  

Visitor Data” means the information collected by FEM when end users visit a Company Offering or Third Party Offering that contains the FEM Technology as further set forth in the Documentation.  Visitor Data shall not include personally identifiable information of end users.

  1. LICENSE GRANTS
  1. FEM Technology.  Subject to Company’s compliance with the terms and conditions of this Agreement, FEM hereby grants to Company or its Affiliate(s), a limited, non-exclusive, non-transferable, non-sublicensable right to (i) access and use the FEM Technology and FEM logo(s) and other marks provided solely for Recommendations and/or Syndication of Company Content or Third Party Content, on Company Offering or Third Party Offering as set forth in an Order Form and in accordance with the Documentation, and (ii) access and use of the Analytics Dashboard solely for internal business purposes.
  2.  Restrictions. Company and its Affiliates will not (and will not authorize its agents or any third party to): (a) copy all or any portion of the FEM Technology except as permitted by this Agreement, including any Order Form; (b) decompile, disassemble or otherwise reverse engineer the FEM Technology, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the FEM Technology; (c) modify, translate or create any derivative works based upon the FEM Technology; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, provide access, or otherwise transfer the FEM Technology, in whole or in part, to any third party; (e) remove, obscure or alter any Third Party Content (including advertisements), copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in the FEM Technology; (f) circumvent or attempt to circumvent any security, encryption, digital rights management, access control technologies, or other protective measures with respect to the FEM Technology; (g)  use the FEM Technology with, or to promote, any spyware, adware, or other malicious code,  and/or (h) use the FEM Technology, or FEM logos for any purpose other than in accordance with this Agreement.
  3. Company’s License Grants.  Company and its Affiliates hereby grant to FEM a worldwide, non-exclusive, non-transferable, non-sublicensable (except as permitted in (iv) below), royalty-free right to:  (i) reproduce, distribute, transmit, modify (solely for technical reasons), analyze, categorize, format, perform, display, and otherwise make available the Company Content via the FEM Technology to Company Offerings and/or Third Party Offerings as specified in an Order Form; (ii) distribute, display and otherwise make available Third Party Content on Company Offerings via the FEM Technology as specified in an Order Form; (iii)  to use and display Company and its Affiliate’s logo(s) and other marks associated with Company Content for attribution purposes on the FEM Technology, and for FEM’s marketing and promotion of the FEM Technology, including its website; and (iv)  sublicense any of the rights granted to FEM’s contractors, consultants, vendors, and other service providers, solely to effectuate the purpose of this Agreement.
  1. COMPANY CONTENT
  1. Content Guidelines.  Company Content must comply with FEM’s Content Guidelines as may be updated from time to time by FEM.  FEM may at any time for any or no reason, reject or remove Company content.  
  2. No Review of Company Content.  Company and its Affiliates acknowledge and agree that FEM will not screen or monitor any Company Content.
  1. INTELLECTUAL PROPERTY
  1. IP Ownership.  Except for the licenses granted under this Agreement, and as between the parties, FEM retains all right, title and interest (including all intellectual property rights) in and to the FEM Technology and FEM logos or other marks provided, and Company and its Affiliates retain all right, title and interest (including all intellectual property rights) in and to the Company Offerings, Company Content, and its logos and marks provided.  All rights not expressly set forth in this Agreement are reserved by each party and its licensors, as applicable.
  2. Feedback. If Company or its Affiliates provide any suggestions, comments, improvements, ideas or other feedback or materials to FEM (collectively, “Feedback”), Company or its Affiliates hereby grants FEM the right to freely use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
  1. DATA
  1. Privacy Policy.  Company and its Affiliates will maintain a privacy policy on each Company Offering that permits the Visitor Data to be collected, used, and shared with, and by, FEM in accordance with this Agreement and any Order Form.
  2. Ownership of Visitor Data. As between the parties, Company and its Affiliates shall retain all right, title and interest (including any and all intellectual property rights) in and to the Visitor Data.
  3. FEM’s Use of Visitor Data. Company and its Affiliates hereby grant to FEM a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of the Visitor Data solely to effectuate the purpose of this Agreement, including any applicable Order Form.
  4. Aggregate & Anonymous Data. FEM aggregates Visitor Data with other data so that results are non-personally identifiable with respect to Company, its Affiliates or its end users, and also collects anonymous technical logs and data regarding use of the FEM Technology (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, such Aggregate/Anonymous Data will be deemed FEM Technology, which FEM may use for any business purpose during or after the term of this Agreement, including without limitation to develop and improve the FEM Technology and to create and distribute reports and other materials. For clarity, this Section 5.4 does not give FEM the right to identify Company or its Affiliates as the source of any Aggregate/Anonymous Data without Company or its Affiliate’s prior written permission.
  5. Independent Data. Nothing in this Agreement limits FEM from collecting or using data from sources other than the Company Offering, even when such data relates to individuals who are end users of a Company Offering or is otherwise similar to Visitor Data.
  6. Security. FEM agrees to use reasonable technical and organizational measures designed to secure its systems from unauthorized access, use, alteration or disclosure. However, FEM shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond FEM’s control.
  1. FEES & PAYMENT; REPORTS; AUDIT        
  1. Fees and Payment. All fees are as set forth in the applicable Order Form. All fees will be paid by Company to FEM, or by FEM to Company, as set forth in an Order Form, in U.S. dollars within [sixty (60) days] of the invoice date. FEM’s fees are exclusive of all taxes and Company and its Affiliates are required to pay any sales, use, GST, VAT, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of FEM.
  2. Reports. Each party will provide to the other the applicable reports set forth in an Order Form.
  3. Audit.  Company or its Affiliate and FEM will keep and maintain complete and accurate books, records and accounts relating to the fees under an applicable Order Form, and may have an independent third party audit such books, records and accounts to verify the accuracy of such fees.  If an audit reveals that either party underpaid revenue shares and/or fees, as applicable, then such party will promptly pay the other party the amount of the underpayment (and correct any other noncompliance) revealed by the audit. If such underpayment exceeds five percent (5%) of the correct amount due, then such party shall promptly reimburse the other party for the costs of such audit.
  1. TERM AND TERMINATION
  1. Term. The term shall be set forth in an applicable Order Form (“Term”).
  2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
  3. Suspension of Service. FEM may suspend its performance under this Agreement immediately upon written notice to Company or Affiliate (a) with respect to any Company Content or Company Offerings that FEM reasonably believes violates or fails to comply with applicable law (including any third party proprietary rights) or poses a material legal or business risk to FEM or (b) if Company or Affiliate breaches any provision of this Agreement.  Unless this Agreement has been terminated, FEM will cooperate with Company or its Affiliate to restore access to the FEM Technology once the condition requiring suspension has been resolved by Company or its Affiliate.
  4. Effect of Termination. Upon expiration or termination of this Agreement, all rights and licenses granted in this Agreement will automatically terminate and each party will return (or destroy) the Confidential Information of the other party. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable law.  Each party will promptly pay to the other party any unpaid fees or other amounts incurred or owed prior to the effective date of such expiration or termination.
  5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 2.2 (Restrictions), 4.1 (Intellectual property), 5.2 (Ownership of Visitor Data); 5.4 (Aggregate and Anonymous Data), 5.5 (Independent Data), 6.1 (Fees and Payment), 7.4 (Effect of Termination), 7.5 (Survival); 8 (Company Obligations), 9 (Warranty Disclaimer); 10 (Indemnification); 12 (Limitation of Liability), 13 (Confidential Information), 14 (Publicity), 15 (DMCA) and 16 (General Provisions).
  1. COMPANY OBLIGATIONS. Company and its Affiliates shall ensure that its use of the FEM Technology is at all times compliant with all applicable local, state, federal and international laws and regulations (“Laws”). Without limiting the foregoing, Company and its Affiliates represents and warrants that: (a) it has obtained all necessary rights, releases and permissions to the Company Content and Company Offerings and to grant the rights granted to FEM in this Agreement and (b) the Company Offerings, Company Content and Visitor Data do not violate any Laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies.
  2. WARRANTY DISCLAIMER. THE FEM TECHNOLOGY AND THIRD PARTY CONTENT ARE PROVIDED “AS IS.”  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FEM, AND ITS LICENSORS, SUPPLIERS, SERVICE PROVIDERS, AND BUSINESS PARTNERS IN THEIR CAPACITY AS SUCH, DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING THERETO, INCLUDING ANY WARRANTIES OF TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE PRACTICE.  FEM DOES NOT WARRANT THAT THE FEM TECHNOLOGY WILL OPERATE ERROR-FREE OR UNINTERRUPTED.
  3. INDEMNIFICATION
  1. FEM Indemnity. FEM will defend at its expense, indemnify and hold harmless Company and its Affiliates and its directors, officers, employees, agents, contractors and representatives (“Related Parties”) from any loss, liability, damage, award, settlement, judgment, fee, cost or expense (including reasonable attorneys’ fees and costs of suit) (“Losses”) arising out of or relating to any third-party claim, allegation, action, demand, proceeding or suit (“Claim”) against any of them that arises out of or relates to any claim that Company or Affiliate’s use of the FEM Technology as explicitly authorized by this Agreement directly infringes any third party’s copyrights, trademarks or trade secrets. If any portion of the FEM Technology becomes, or in FEM’s opinion is likely to become, the subject of a claim of infringement or misappropriation, FEM may, at its option: (a) procure for Company or its Affiliate the right to continue using the affected portion of the FEM Technology; (b) replace the FEM Technology or affected portion thereof with substantially functionally similar products or services; (c) modify the FEM Technology so that it becomes non-infringing; or if such options are commercially unreasonable, (d) terminate this Agreement and refund any unused portion of any prepaid fees by Company or its Affiliate, and upon such termination, Company or its Affiliate will immediately cease all use of the FEM Technology. Notwithstanding anything to the contrary, FEM shall have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim with respect to claims arising as a result of: (w) any use of the FEM Technology not in accordance with this Agreement;  (x) any use of the FEM Technology in combination with other services, products, processes, equipment, software or data not supplied by FEM; (y) any modification of the FEM Technology by any person other than FEM; or (z) any Company Content, Company Offerings or Visitor Data, or content and information contained therein. THIS SECTION 10 STATES THE SOLE AND EXCLUSIVE REMEDY OF COMPANY AND ITS AFFILIATES AND THE ENTIRE LIABILITY OF FEM, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES OF THE FOREGOING, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
  2. Company Indemnity.  Company and its Affiliates will defend at its expense, indemnify and hold harmless FEM and its Related Parties from any Losses arising out of or relating to any third-party Claim against any of them that arises out of or relates to (i) any breach of Company’s obligations under Section 8; and (ii) any claim that the Company Content or Company Offering, or FEM’s use thereof in accordance with this Agreement, infringes any third party’s copyrights, trademarks or trade secrets.
  3. Procedures.  The party seeking indemnification (“Indemnified Party”) will: (a) provide prompt written notice to the other party (“Indemnifying Party”) of any Claim; (b) permit the Indemnifying Party to assume full responsibility to investigate, prepare for and defend against any such Claim; (c) provide assistance in the defense of such Claim at the Indemnifying Party&rsqursquo;s reasonable expense; (d) has the right to participate, at its own option and expense, in the defense of such Claim; and (e) not compromise or settle such Claim without the Indemnifying Party’s prior written consent not to be unreasonably withheld.
  1. SUPPORT. FEM shall provide the support and maintenance set forth in an Order Form.  Company or its Affiliate will promptly report to FEM in writing (email will suffice) any bugs or errors discovered with respect to the FEM Technology, with sufficient detail to allow FEM to recreate the bugs or errors.  FEM will use commercially reasonable efforts to replicate and correct such reported bugs or errors.  
  2. LIMITATION OF LIABILITY
  1. Consequential Damages Waiver and Liability Cap.  EXCEPT WITH RESPECT TO ANY BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, IN NO EVENT WILL EITHER PARTY (OR ITS LICENSORS, SUPPLIERS, SERVICE PROVIDERS, AND BUSINESS PARTNERS IN THEIR CAPACITY AS SUCH) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING FROM OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT WITH RESPECT TO ANY BREACH OF CONFIDENTIALITY OR PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, EACH PARTY’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY EACH PARTY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM; HOWEVER, THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO, AND WILL BE IN ADDITION TO, ANY AMOUNTS PAYABLE BY COMPANY OR AFFILIATE UNDER THIS AGREEMENT.
  1. CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.  Any FEM Technology, performance information relating to the FEM Technology, and the terms and conditions of this Agreement shall be deemed Confidential Information of FEM. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
  2. PUBLICITY. Neither party shall issue a press release without the other party’s prior written consent.  FEM may use Company’s and its Affiliate’s name, logo and marks to identify Company or its Affiliate as a customer of FEM on FEM’s website and other marketing materials.  At FEM’s request, Company and its Affiliates also agree to participate in a case study about Company’s or its Affiliate’s use of the FEM Technology.  
  3. DMCA. Company and its Affiliates shall be responsible for (a) handling and processing notices of alleged infringement by the Company Offering and requests to take down infringing content in accordance with the Digital Millennium Copyright Act (or any successors thereto) (“DMCA”) and shall promptly notify FEM if it becomes aware of any such notices or takedown requests and (b) addressing all other incidents of alleged infringement or violation of third party rights by Company Offering.  Notwithstanding the foregoing, without limiting FEM’s other rights and remedies hereunder, FEM reserves the right to respond to any DMCA notices it receives and take down allegedly infringing Company Content and suspend service in accordance with its DMCA notice and takedown policies.
  4. GENERAL PROVISIONS
  1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be void.
  2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
  3. Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof.  The parties will first attempt to resolve any dispute, claim or cause of action arising out of or relating to this Agreement (each, a “Dispute”) through good faith negotiations. If such Dispute is not resolved within 10 business days after such attempt, either party may initiate binding arbitration in Los Angeles, California. The arbitration will be administered by JAMS by a single arbitrator.  The award of the arbitrator will be binding and may be entered as a judgment in any court of competent jurisdiction.  All participants will hold the content and result of the arbitration in confidence, each of whom will be bound by an appropriate confidentiality agreement.  The prevailing party as determined by the arbitrator will be entitled to recover its attorneys’ fees and costs in connection with such arbitration.  Notwithstanding the foregoing dispute resolution procedure, in the event of an actual or threatened breach hereunder, or any actual or threatened infringement of a party’s or its affiliates’ intellectual property rights, a party may seek equitable relief in any court of competent jurisdiction (including restraining orders, or other temporary or permanent injunctive relief) without submitting to such dispute resolution procedure.
  4. Notices. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth in the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, FEM may provide Company and its Affiliates with operational notices regarding the FEM Technology or other business-related notices via email or through conspicuous posting of such notice on the Analytics Dashboard, as determined by FEM in its sole discretion.
  5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Company or its Affiliates will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
  6. Entire Agreement. This Agreement (including all Order Forms) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
  7. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
  8. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.