Last updated: 1/7/2020
PROOF OF CONCEPT AGREEMENT
BY EXECUTING A SALES ORDER (THE “SO”) THAT INCORPORATES BY REFERENCE THIS PROOF OF CONCEPT AGREEMENT (THIS “PROOF OF CONCEPT AGREEMENT” OR “POC AGREEMENT”, TOGETHER WITH THE SO, THIS “AGREEMENT”), YOU (AS AN INDIVIDUAL, COMPANY, BUSINESS, CORPORATION OR OTHER ENTITY, “CUSTOMER”) ACCEPT AND AGREE TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN CUSTOMER AND APIFIA, INC., D/B/A MAVRCK (“MAVRCK”). CUSTOMER’S USE OF THE MAVRCK PRODUCTS (AS DEFINED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW, SO CUSTOMER SHOULD TAKE THE TIME TO FULLY UNDERSTAND HOW THIS POC AGREEMENT GOVERNS CUSTOMER’S RELATIONSHIP WITH MAVRCK AND CUSTOMER’S USE OF THE MAVRCK PRODUCTS. CUSTOMER’S RIGHT TO USE THE MAVRCK PRODUCTS IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS POC AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, CORPORATION OR OTHER ENTITY, YOU AND THE APPLICABLE COMPANY, BUSINESS, CORPORATION OR OTHER ENTITY EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, CUSTOMER MUST AND MAY NOT ACCESS OR USE THE MAVRCK PRODUCTS IN ANY MANNER FOR ANY PURPOSE.
Mavrck makes available certain products and services, including Mavrck’s proprietary software-as-a-service influencer marketing platform and related influencer identification, activation, engagement, incentive management and processing and dashboards and/or analytics products and services. Customer desires to use for itself—and, if Customer is an agency, on behalf of Brand(s) (as defined below)—the Mavrck products and services set forth in the SO (the “Mavrck Products”) for proof of concept purposes only, in accordance with the terms and conditions set forth below.
- ACCESS; RESTRICTIONS. Subject to the terms and conditions of this Agreement, Mavrck hereby grants to Customer, and Customer accepts, a non-transferable, non-sublicensable, non-exclusive right, during the Proof of Concept Period, to access and use the Mavrck Products, in object code format only, to identify, activate and engage with influencers on social media websites (such as Facebook and Twitter) on behalf of Customer and on behalf of Customer’s customers that are identified in the applicable SO (each, a “Brand”). If Customer is an agency, (a) Customer has a limited right to sublicense the foregoing rights to each Brand for and in connection with the evaluation, creation and engagement of influencers on behalf of such Brand and (b) Customer will ensure that each Brand will only use the Mavrck Products as expressly permitted by this Agreement (including the applicable SO), and will be responsible and liable for any acts or omissions of each Brand in violation of this Agreement as if such Brand were “Customer” hereunder. Customer shall not provide access to the Mavrck Products to any person who is not an employee of Customer (or an employee of a Brand, if Customer is an agency), unless otherwise agreed to in writing by MARVCK (“Authorized Users”). Only Authorized Users who have been assigned a unique login to the Mavrck Products shall be entitled to access and use the Mavrck Products under this Agreement. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Mavrck Products and notify Mavrck promptly of any such unauthorized access or use; (ii) be solely responsible for the accuracy, quality, integrity and legality of the Customer Content and Customer Data (each, as defined below) and (iii) use the Mavrck Products only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer’s or its Authorized Users’ login credentials. Except as expressly permitted hereunder, Customer shall not, and shall not permit or authorize any third party (including any Brand) to: (A) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Mavrck Products; (B) modify, translate or create derivative works based on the Mavrck Products; (C) copy (except for archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Mavrck Products; (D) use the Mavrck Products for timesharing or service bureau purposes or otherwise for the benefit of a third party; (E) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Mavrck Products or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (F) remove or obscure any proprietary notices or labels of Mavrck or its suppliers on any Mavrck Product.
- CONTENT. As used herein, “Customer Content” means any text, book excerpts, promotional materials, images, photos, video, sounds, musical works or other works of authorship that is provided by Customer or any Brand to Mavrck under this Agreement, including via the Mavrck Products, but expressly excluding Customer Data (as defined below). Subject to the terms and conditions of this Agreement, Customer hereby grants to Mavrck a nonexclusive, worldwide, royalty-free, fully paid up, nonsublicensable (except to contractors performing services on behalf of Customer or Mavrck), nontransferable (except as set forth in Section 13) right and license to copy, distribute, display, modify and otherwise use the Customer Content in connection with making available the Mavrck Products to Customer hereunder. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Content other than the rights expressly granted to Mavrck under this Agreement. Customer is responsible for maintaining copies, duplicates or back-ups of any Customer Content.
- DATA RIGHTS. As used herein, “Mavrck Data” means any and all data or information provided or otherwise made available by Mavrck to Customer under this Agreement, including, without limitation, any influencer data or content accessed by Customer via the Mavrck Products. Subject to the terms and conditions of this Agreement, Mavrck hereby grants Customer a royalty-free, nonexclusive, nonsublicensable, nontransferable (except as expressly permitted herein) license, during the Proof of Concept Period, to use the Mavrck Data to perform marketing activities within the Mavrck Products. Except as expressly set forth herein, Customer acquires no rights or interests in the Mavrck Data under this Agreement. As used herein, “Customer Data” means any and all data or information provided or otherwise made available by Customer or any Brand to Mavrck under this Agreement, including, without limitation, any data or information provided by Customer or any Brand via the Mavrck Products. Subject to the terms and conditions of this Agreement, Customer hereby grants to Mavrck: (a) a nonexclusive, worldwide, royalty-free, fully paid up, nonsublicensable (except to contractors performing services on behalf of Customer or Mavrck), nontransferable (except as set forth in Section 13) right and license to copy, distribute, display, modify and otherwise use the Customer Data (i) in connection with making available the Mavrck Products to Customer hereunder, (ii) to internally develop and improve its products and services, including its influencer index and (iii) to create aggregated or anonymized statistical and usage data from such Customer Data (the “Aggregated Data”); and (b) a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid up, sublicensable (though multiple tiers), transferable right and license to copy, distribute, display, modify and otherwise use the Aggregated Data, including to combine and incorporate such Aggregated Data with or into other data and information available derived or obtained from other sources. In no event will Mavrck use the Aggregated Data in a manner that identifies Customer. In addition, for the avoidance of doubt, during the Proof of Concept Period and thereafter, Mavrck may use any publicly available data or data that is already in Mavrck’s control, regardless of whether such data qualifies as Customer Data hereunder, for any purposes permitted by applicable law, including without limitation growing Mavrck’s influencer index. In the case that Customer Data includes personal data subject to the European Union (EU) General Data Protection Regulation 2016/679 (“GDPR”), the parties will enter into a separate Data Processing Addendum in order to address the processing of personal data in accordance with the GDPR.
- TRADEMARKS AND MARKETING. Customer hereby grants to Mavrck a nonexclusive, worldwide, royalty-free, fully paid up, nonsublicensable (except to contractors performing services on behalf of Customer or Mavrck), nontransferable (except as set forth in Section 13) right and license to copy, display and otherwise use Customer’s and each Brand’s trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or other identification (“Trademarks”) in connection with its performance hereunder. Any other proposed use of the Trademarks shall be subject to Customer’s prior written approval in each instance.
- INTELLECTUAL PROPERTY RIGHTS. Except as expressly set forth in Section 1 above, Customer does not have, and will not acquire, any right, title or interest in or to the Mavrck Products, any updates, enhancements, improvements or modifications thereto, or any intellectual property rights which subsist therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Mavrck grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement.
- FEEDBACK. Mavrck will be free to implement, use, modify or otherwise exploit, Customer’s ideas, suggestions, feedback or materials (or any part thereof) related to the Mavrck Products without any payment or other obligation to Customer, and Customer agrees never to assert against Mavrck any claim based on any proprietary rights therein. Customer acknowledges that Mavrck may modify, update or otherwise change the Mavrck Products from time to time, in its sole discretion. If any such changes result in diminished functionality, Customer may terminate this Agreement without any penalty for exercising such right under the termination provisions in Section 9 of this Agreement.
- INCENTIVES. If, in connection with a given campaign, Customer desires Mavrck to manage Customer’s incentives, including without limitation the delivery to any influencer(s) of any Incentive Products, the parties will set forth in reasonable detail the terms surrounding such deliveries and Incentive Products in the applicable SO. “Incentive Products” means any products or other materials provided by Customer to Mavrck pursuant to such SO (e.g., gift cards and merchandise). If Mavrck manages any of Customer’s incentives, Customer will require, or will ensure that each Brand requires, each influencer to which Customer (or the applicable Brand) wishes Mavrck to deliver any Incentive Products hereunder to register through the Mavrck Products pursuant to Mavrck’s standard terms and conditions. Mavrck may subcontract or otherwise delegate such deliveries through its third party contractors. Mavrck (including its subcontractors) is a bailee with respect to such Incentive Products and is forwarding such Incentive Products to the applicable influencer(s) on Customer’s behalf, and Mavrck (including its subcontractors) is neither a seller nor a distributor of any Incentive Products. Any delivery by Mavrck (including its subcontractors) of Incentive Products to any influencer is contingent on Mavrck’s receipt of the same from Customer and/or the applicable Brand in accordance with the applicable SO. If an SO contemplates cash, or cash equivalents (i.e., gift cards), as an Incentive Product, Mavrck will make no payments to influencers prior to Mavrck’s receipt of such funds from Customer and/or the applicable Brand, unless the Parties mutually agree to invoicing terms in the applicable SO. Title to all Incentive Products will at all times remain with Customer (or the applicable Brand) until delivered to the applicable influencer(s), at which time title to such Incentive Products will pass directly from Customer (or the applicable Brand) to such influencer(s).
- FEES AND PAYMENTS. Customer will pay to Mavrck all fees, if any, set forth in the SO, in accordance with the terms set forth therein.
- TERM AND TERMINATION. This Agreement commences on the date of execution of the SO (the “Effective Date”) and shall continue in effect thereafter until the earlier to occur of (a) the end date set forth in the SO or (b) the parties entering into a definitive agreement governing Customer’s access and use of the Mavrck Products, unless otherwise terminated in accordance with this Section 9 or by written agreement of the parties (the “Proof of Concept Period”). Either party may terminate this Agreement upon written notice to the other party, for any or no reason. Upon any termination or expiration of the Agreement, all rights granted by Mavrck hereunder and all obligations of Mavrck to provide the Mavrck Products shall immediately terminate and Customer shall cease use of the Mavrck Products. Upon any termination or expiration of this Agreement, each party will return or destroy all copies or other embodiments of the other party’s Confidential Information. Section 3(b), the second-to-last sentence in Section 3 and the following Sections will survive any expiration or termination of this Agreement: 4, 5, 6, 8, 9, 10, 11, 12, and 13.
- CONFIDENTIALITY. “Confidential Information” means any and all non-public confidential and/or proprietary information, regardless of whether it is in tangible form, disclosed by either party that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party; provided, however, that a disclosing party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified. Mavrck’s Confidential Information includes, without limitation, the Mavrck Products, the Mavrck Data and the terms of this Agreement. Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information to a third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this Section will not apply to any information that the receiving party can demonstrate: (a) is or becomes a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party, and providing such party with the opportunity to seek a protective order. In the event of actual or threatened breach of the provisions of this Section 10, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
- REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that: (a) it will perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations; (b) its performance of its obligations under this Agreement will not violate any provision of any agreement to which it is a party or by which it is bound; (c) it has all rights, licenses and permits necessary to perform its obligations under this Agreement; (d) it owns the Customer Content, or otherwise has the right to use the Customer Content in connection with the Mavrck Products, and Mavrck’s use of the Customer Content as permitted hereunder will not violate any rights of any person; and (e) it has the right to deliver any Incentive Products to Mavrck for forwarding to the applicable influencer(s).
- DISCLAIMERS AND LIMITATION OF LIABILITY
THE MAVRCK PRODUCTS AND ANY RELATED SERVICES PERFORMED BY MAVRCK HEREUNDER ARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT. MAVRCK DOES NOT WARRANT THAT THE MAVRCK PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE MAVRCK PRODUCTS WILL BE UNINTERRUPTED. MAVRCK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE INCENTIVE PRODUCTS AND ALL OF ITS ACTIVITIES, PRODUCTS AND SERVICES PERFORMED OR MADE AVAILABLE UNDER THIS AGREEMENT. MAVRCK HAS NO CONTROL OVER THE CONDUCT OF CUSTOMER, THE BRANDS OR THEIR INFLUENCERS, AND MAVRCK DISCLAIMS ALL LIABILITY WITH RESPECT TO CUSTOMER’S INFLUENCER AGREEMENTS TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT WILL MAVRCK BE LIABLE TO CUSTOMER WITH RESPECT TO ANY CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (A) ANY LOST PROFITS, cost of procurement of substitute goods or services, OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, EVEN IF CUSTOMER HAS ADVISED MAVRCK IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND SUCH DAMAGES ARE FORESEEABLE OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) the amounts received BY MAVRCK under this Agreement.
- GENERAL. This Agreement constitutes the entire agreement between 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. If any provision of this Agreement is found to be void, invalid or unenforceable: (a) the same will be conformed to the extent necessary to comply with applicable law or stricken if not so conformable, so as not to affect the validity of this Agreement; and (b) the remaining provisions will remain in effect. No amendment of this Agreement or any exhibit is binding unless in writing and executed by each of the parties. Any waiver or consent is valid only if in a signed writing and only in the specific instance in which it is given, and such waiver or consent is not to be construed as a waiver of any subsequent breach of any other provision or as a consent with respect to any similar instance or circumstance. This Agreement does not confer any third party beneficiary rights and does not create a joint venture, partnership or employment relationship between the parties. Except as expressly provided herein, neither party has the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. The formation, construction and interpretation of this Agreement are controlled by the laws of the Commonwealth of Massachusetts excluding any rule or principle that would refer to and apply the substantive law of any other state or jurisdiction. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns. Customer may not directly or indirectly, including by assignment, operation of law or change of control, transfer or assign this Agreement without Mavrck’s prior written consent. Mavrck may freely transfer or assign this Agreement. In the event a party incurs legal expenses to enforce this Agreement, the prevailing party, as determined by a court of competent jurisdiction, will be entitled to recover such legal expenses, including, without limitation, reasonable attorneys’ fees, costs, and necessary disbursements, in addition to any other relief to which such party is entitled. This Agreement may be executed in counterparts, each of which will be an original, and all of which together will be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement. The headings of this Agreement are provided for convenience only and are not intended to affect its construction or interpretation. Any notice required or permitted under this Agreement must be in writing and sent to the address and the attention of the person set forth on the signature page to this Agreement, unless a party changes such information by notice given pursuant to this Section. If an act of God, government, war, terrorism, fire, flood, or other causes beyond the reasonable control of a party prevents such party from performing its obligations under this Agreement, such nonperformance will be excused and will not be a breach for so long as such conditions prevail.