The purpose of this Agreement is to set forth the terms and conditions under which, among other things, Clayden will license to Licensee limited access to the Widget, and in connection therewith make available on each Website (as defined below) certain Widget Content (as defined below). The Widget, at a general level, is a piece of code delivered by Clayden to Licensee for posting on one or more of Licensee's websites which have been approved by Clayden (each, a "Website"). The Widget, when posted at a Website, displays various boxes, captions and/or links at the Website which link, either directly or indirectly, to articles, postings or other content posted at third party websites (collectively, "Widget Content"). Clicks on any such link at a Website will open a new window either at a Clayden landing page or at the website where the applicable Widget Content is posted or published. Widget Content displayed on a Website will be updated on a regular basis. In turn, Clayden is entitled to make some or all of the content at each Website, in Clayden's discretion, available via links or similar boxes at other websites within Clayden's network.
(a) Subject to the terms and conditions set forth herein, Clayden hereby grants Licensee a non-transferable, non-exclusive, revocable, limited license during the Term to access and use the Widget and post the Widget Content solely within a Website. Clayden reserves all rights not expressly granted herein in the Widget, the Widget Content and the Services, and Clayden may terminate this license at any time for any reason or no reason. Clayden shall have sole discretion in determining whether or not to allow inclusion of the Widget or any Widget Content within any of Licensee's websites. Clayden may, from time to time, update or modify the Widget, release new versions of the Widget or create new modules related thereto, each of which may, at Clayden's discretion, be included within the license described above. Licensee shall not be permitted to sublicense or transfer any of its rights hereunder including, without limitation, access to the Widget or any Widget Content. Licensee shall only provide or allow access to user names or passwords to access any Clayden administrative pages related to the Widget to employees of Licensee. Licensee is solely responsible for all activity which takes place under any of its user names or passwords.
(b) Subject to the terms and conditions set forth herein, Licensee hereby grants to Clayden a non-exclusive, royalty-free, worldwide, sublicensable, transferable license to include any articles, stories, blog posts, photographs, postings or other content (collectively, the "Licensee Content") within Clayden's network, and to this end, link to any such Licensee Content both within the Clayden Site and via Widgets posted at other websites within Clayden's network. Such license entitles Clayden to (i) use, reproduce, modify, publish, hyperlink, list information regarding, edit, translate, distribute, publicly perform, publicly display and make derivative works of all Licensee Content, including without limitation images, text, videos, audio recordings, data and any name, voice and/or likeness as contained in such content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed for use in connection with the Services, and (ii) include summaries, thumbnails and/or captions relating to or excerpted from the applicable Licensee Content both within the Clayden Site and/or at other websites within Clayden's network. Clayden shall have sole discretion in determining which Licensee Content to include within Clayden's network.
3. Certain Restrictions.
(a) Restrictions. Licensee shall not directly or indirectly (i) copy or reproduce all or any part of the Widget, whether electronically, mechanically or otherwise, in any form, or (ii) copy or re- post any portion of the Widget Content or take any other action in respect of the Widget Content which is not expressly permitted in writing by Clayden. Licensee shall use the Widget, the Widget Content and the Services solely for their intended purposes and shall not use the Widget, the Widget Content or the Services for the benefit of any third party except as specifically contemplated under this Agreement. For the avoidance of doubt, all rights in the Widget, the Widget Content, the Services and all other Clayden software and/or intellectual property not expressly granted herein are reserved by Clayden. Licensee will not use the Widget or the Services to post, transmit, convey, submit, distribute, store or destroy any information: (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; (f) in violation of the any acceptable use policy or other policy posted at the Clayden Site or otherwise made available to Licensee from time to time. Licensee shall not violate or attempt to violate the security of the Widget. Licensee shall not use any automated system such as "robots" or "spiders" that accesses the Widget, the Widget Content or the Services, and shall neither to collect or harvest any personally identifiable information, including account names, from the Widget or any of the Services nor to use the communication systems provided in connection with the Services for any commercial solicitation purposes. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Widget, including, without limitation, any of the software comprising or in any way making up a part of the Widget. Licensee shall not take any action or institute any automated system intended to generate clicks on any of the links within the Widget Content beyond clicks initiated in the ordinary course by visitors to the applicable Website. Licensee shall defend and indemnify Clayden, its affiliates, subsidiaries and each of their respective equity holders, officers, managers and directors, at Licensee's sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Licensee's breach of any of its obligations or representations set forth in this Section 3(a).
(b) Third Parties; Users. Licensee shall not share Licensee's password to access the Widget, the Services or any Clayden admin pages or systems with any third party. Licensee is responsible for all activities conducted under its user logins and for its users' compliance with this Agreement. User logins are for designated users and cannot be shared or used by more than one user, but any user login may be reassigned to another user as needed. Licensee will be responsible for the confidentiality and use of all such passwords and log-in information. Licensee's use of the Widget and the Services shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use or time-sharing of the Widget.
4. Certain Responsibilities.
Clayden shall be solely responsible for determining the Widget Content to be posted in connection with the Widget from time to time, and for determining the items from within the Licensee Content which will be accessible via links at other websites within Clayden's network. Licensee shall be solely responsible for determining the location of the Widget within its Websites, and for maintaining all user names and passwords provided to Licensee.
(a) Customer Support Clayden will, during the Term, use commercially reasonable efforts to answer questions regarding the Widget and the Services during normal business hours in as timely a manner as is reasonably practicable. Notwithstanding the foregoing, Clayden shall have no obligation to support: (i) errors caused by Licensee's negligence, hardware malfunction or other causes beyond the reasonable control of Clayden; (ii) errors caused by any Website; or (iii) third party software or ASP services not licensed through Clayden.
(b) Certain Limitations. Clayden does not offer any service level agreements or guarantees regarding the Widget, the Widget Content or the Services, and Clayden shall not be liable for any delays in responding to Licensee's inquiries or any downtime. Licensee hereby acknowledges that Clayden may, from time to time, release or license new versions of the Widget or otherwise upgrade the Widget. The license granted to Licensee hereunder applies to any such upgrades and/or new versions to the extent such upgrades and/or new versions are generally made available by Clayden to licensees of the Widget and do not constitute additional features and/or functionality for which an additional fee is charged. Nothing herein shall be deemed to obligate Clayden to upgrade and/or improve the Widget or the Services at any time.
6. Representations and Warranties.
Each party represents and warrants that it has the authority to enter into this Agreement and perform the services required of it hereunder. In addition, Licensee hereby represents and warrants that none of the Websites nor any Licensee Content: (a) violates any applicable law, statute, ordinance or regulation; (b) infringes the intellectual property rights of others or any rights to privacy or publicity; (c) is defamatory, obscene, harmful, offensive or trade libelous; (d) is primarily geared towards children under the age of 13 years old; or (e) is false, misleading or inaccurate in any way. Licensee further represents and warrants that Licensee has all rights necessary to place the Widget within each Website, to post the Widget Content within each Website and to allow Clayden and/ or websites included within Clayden's network to link to all of the Licensee Content as described herein. Licensee shall defend and indemnify Clayden, its affiliates, subsidiaries and each of their respective equity holders, officers, managers and directors, at Licensee's sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Licensee's breach of any of its representations set forth in this Section 6. Clayden shall be entitled, in its sole and absolute discretion, to refuse to allow the Widget or any Widget Content to be posted at or within any Website for any reason.
7. No Fees.
Licensee and Clayden hereby agree and acknowledge that no license, royalty or other fees shall be due and owing by either party to the other in connection with the license and services described herein. While it is, as of the date of acceptance of this Agreement, anticipated that Clayden will direct 2 visitors to the Website for each click on any of the links within the Widget Content at the Website, such results are estimates only and as such are not guaranteed, and Clayden shall not be liable in any amount or for any damages resulting, or alleged to have resulted, from Licensee's determination that it has received insufficient or inadequate traffic from within the Clayden network. Clayden does not guaranty any level of traffic or number of visitors to any of the Websites.
8. Term and Termination.
This Agreement shall continue in full force and effect beginning on the date this Agreement is accepted by Licensee and ending on the date on which either party provides written or electronic notice of termination to the other party. Upon termination of this Agreement for any reason, Licensee shall no longer be entitled to access or use the Widget, to post any Widget Content or to otherwise use any of the Services. In addition to the foregoing and not in limitation of any other rights Clayden may have hereunder, Clayden shall be entitled, at its discretion, to immediately terminate or suspend Licensee's access to the Widget, the Widget Content, Clayden's network and/or any Services at any time and for any period of time in the event Licensee breaches or, in Clayden's sole discretion, either threatens to breach any its obligations under this Agreement or otherwise takes any action or posts any content at a Website which Clayden determines to be objectionable or harmful to Clayden's reputation or business in any way. Sections 2(b), 3, 6, 8, 9, 10, 11, 12, 13 and 14 of this Agreement shall survive any termination of this Agreement.
9. Intellectual Property.
10. Confidentiality; Non-Solicitation.
Each party agrees to treat as confidential all confidential information of the other party, not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, Licensee shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of Clayden or any of its affiliates to terminate employment with Clayden or such affiliate or to become employed by or enter into contractual relations with any other individual or entity.
11. Disclaimers; Indemnification.
(a) No Warranties. Except as explicitly set forth herein, neither Clayden, its affiliates, nor any such party's employees, equity holders, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Widget or any of the Services or Widget Content will be error-free, (c) that the Services, the Widget or Widget Content will be available and/or functional at all times, (d) as to non-infringement, (e) as to the number of visitors or level of traffic that may be achieved by any Website on account of the Widget, the Widget Content or any Services, (f) as to the quality or type of traffic that may be directed to any Website on account of the Services, or (g) as to the results that may be obtained or achieved by Licensee by accessing and/or using the Widget, the Widget Content and/or the Services. Licensee agrees and acknowledges that the Widget, the Services and access to the Widget Content are licensed and/or provided hereunder on an "as is" basis. In addition, Licensee hereby agrees and acknowledges that: (i) Clayden is not the owner or creator of any of the Widget Content; (ii) Clayden's services are administrative in nature and Clayden is not a party to any transaction or matter which may be addressed using the Widget or the Widget Content; and (iii) the Widget may not function properly or as intended at times. As such, Licensee shall not name Clayden or any of its affiliates, or any of their officers or equity holders, as a party in any litigation or arbitration arising out liabilities relating to the Widget and/or any Widget Content. To the extent Licensee determines that any Widget Content is objectionable or otherwise inappropriate for the applicable Website, Licensee's sole and exclusive remedy shall be to terminate this Agreement in accordance with the terms set forth herein. In addition, Clayden is not responsible for any electronic communications and/or Licensee Content which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Clayden, including, but not limited to, the Internet and Licensee's local network.
(b) Unavailability of the Widget or Services. Licensee is solely responsible, at its sole cost and expense, for providing and maintaining all equipment and connections necessary to access the Internet. While it is Clayden's objective to make the Services accessible at all times, the Widget, the Widget Content and/or Services may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, the Widget may operate slowly from time to time which may result in Widget Content loading slowly at times. Licensee understands and acknowledges that due to circumstances both within and outside of the control of Clayden, access to the Widget and/or Services may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, Clayden shall not be liable in any way for any delay in responding to an inquiry or question forwarded by Licensee or the effects any delay or unavailability may have on Licensee. LICENSEE AGREES THAT CLAYDEN SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WIDGET, THE WIDGET CONTENT OR ANY RELATED SERVICES, AND THAT LICENSEE SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS.
(c) Indemnification. Licensee shall defend, indemnify and hold harmless, at Licensee's sole cost and expense, Clayden, its subsidiaries, affiliates and each such entity's successors, assigns, officers, directors, shareholders, managers, members, agents and employees from and against any and all claims, losses, actions, injury, damages, liabilities, costs and expenses (including attorneys' fees) arising out of or in any way relating to: (i) Licensee's access to and use of the Widget, the Widget Content and/or Services; (ii) Licensee's breach of any representation, warranty, covenant or other agreement set forth in this Agreement (either in whole or in part); (iii) any Licensee Content; and/or (iv) Licensee's negligent acts and/or omissions. In addition to the foregoing, Licensee shall be solely responsible for indemnifying the applicable party in the event of any claim against any other party within Clayden's network arising out of the Licensee Content, in whole or in part (including, without limitation, intellectual property infringement claims), and each such third party shall be deemed to be a third party beneficiary of this provision entitled to rely on and enforce this indemnification obligation directly.
12. Limitation on Liability.
NEITHER CLAYDEN NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EQUITY HOLDERS OR AGENTS SHALL, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY EVENT, CLAYDEN'S TOTAL LIABILITY TO LICENSEE FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $100.
13. Force Majeure
Clayden shall not be liable to Licensee for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Widget, the Widget Content and/or Services.
Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement shall be resolved solely in the appropriate Federal or state court located in Cook County, Illinois. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. Licensee agrees to pay all sales and/or use taxes levied by any governmental authority upon the goods and services provided hereunder by Clayden (other than taxes due and owing on Clayden's net income). This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by either party other than to an entity acquiring substantially all of its business and assuming substantially all of its obligations and liabilities or by Clayden to an affiliate. Any notice provided for under this Agreement shall be deemed effective when delivered either by facsimile to the respective fax numbers listed on Website or as provided by Licensee in signing up for the Widget, as applicable, or by e-mail to either support@Clayden.com (in the case of notice to Clayden) or the e-mail address provided to Clayden by Licensee in signing up for the Widget (in the case of notice to Licensee). If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.