Field59 Website Solutions Terms and Conditions

This Agreement is entered into by and between Field59, Inc. (“Field59”) and Customer, as of the Start Date. To the extent there is a conflict between the Order Form and these Terms and Conditions, these Terms and Conditions shall control. The Order form is governed by the terms posted to www.field59.com (or successor website designated by Field59 upon notice to Customer) as of the Date the Order form is signed.
These Terms and Conditions were last updated: September 22, 2016.

Definitions

“Agreement” refers to the Order Form and these Terms and Conditions;

“Customer” refers to the entity identified as “Customer” on the Order Form.

“Customer Marks” means the trademarks, service marks and/or logos that are property of Customer and its related companies, and such other trademarks, service marks and logos used by Customer and its related companies from time to time.

“Customer Website(s)” or “Customer Site(s)” means each World Wide Web page(s) listed in the attached Order Form.

“Order Form” refers to the form attached to these Terms and Conditions.

Additional capitalized terms have the meaning ascribed to such capitalized terms on the Order Form or as otherwise defined in these Terms and Conditions.

1. Grant of Licenses

1.1 License to Field59. Customer hereby grants Field59 license to provide support of Customer Website solely in accordance with its Support Policy, which is available at www.field59.com/support (or successor website designated by Field59 upon notice to Customer).

2. Field59 Obligations

2.1 Field59 Representation. Field59 represents that it has the right and power to enter into this Agreement and fully perform its obligations under this Agreement.

2.2 Other Field59 Obligations. Subject to Customer’s compliance with this Agreement, Field59 shall provide limited ongoing support to Customer for the Customer Website, consistent with Field59’s support policy (available at http://www.field59.com/support, or successor website designated by Field59 upon notice to Customer) (“Support”). Field59 will provide Support to Customer up to the allotted number of monthly hours, or on an as-used basis, as indicated on the Order Form. For additional Support, Customer shall pay the Support overage fee noted on the Order Form, consistent with Section 4. Customer agrees and acknowledges that Field59 may revise or update its support policy at any time with notice to Customer. Customer shall submit all support requests to the Field59 online support portal (available at http://www.field59.com/support, or successor website designated by Field59 upon notice to Customer) or by such other method as Field59 may designate with notice to Customer.

3. Customer Obligations

3.1 Customer Representations. Customer represents that it has the right and power to enter into this Agreement and fully perform its obligations under this Agreement.

3.2 Customer Warranties. Customer warrants as follows: Customer owns the Customer Content or otherwise has all necessary licenses, rights, consents, and permissions in and to the Customer Content, including without limitation, all trademark, trade secret, copyright, patent, rights of publicity and other proprietary rights, to grant Field59 the rights granted to it in this Agreement and to perform Customer’s obligations pursuant to this Agreement.

4. License Fees, Use Fees, Inventory Share and Reporting

4.1 License Fee. In exchange for Customer’s license listed on the Order Form, Customer shall pay Field59 the License Fee listed on the Order Form.

4.2 Fee Payments. One half of the License Fee can be payable in advance of the Start Date. The balance of all fees are due and payable by Customer within thirty (30) days after the date of Field59’s invoice. All fees are assessed and shall be paid solely in accordance with Field59’s invoice.

4.3 Setup Fee. A Setup Fee may be assessed as indicated on the Order Form, depending on the complexity and nature of Customer’s implementation.

5. Term; Termination

5.1 Term. The Term of this Agreement shall begin on the Start Date and end on the End Date. The Start Date and End Date are listed on the attached Order Form.

5.2 Immediate Termination. Either party may terminate this Agreement immediately, if, at any time, (i) the other party files in any court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency, (ii) such other party is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition is not dismissed within sixty (60) days after the filing thereof, or (iii) such other party makes an assignment for the benefit of creditors.

5.3 Termination for Breach. If either party fails to perform any of the material terms or conditions required of it by this Agreement, the nonbreaching party may, at its option, give the breaching party written notice of such material breach or default. Such notice shall describe the nature of the breach. If the breaching party does not cure said breach within thirty (30) days following receipt of any such notice, the non-breaching party may terminate the Agreement immediately upon further written notice to the breaching party.

5.4 Effects of Termination. Upon termination of this Agreement, all licenses and rights granted under this Agreement shall immediately terminate.

6. License to Customer Marks: Field59 shall have the limited right, but not the obligation, to disclose and promote Field59’s relationship with Customer and to include Customer’s name and logo in Field59’s advertising, publicity and promotion materials. Field59’s use of any Customer Marks in accordance herewith will not create any right, title or interest in or to any such intellectual property and that all such use and goodwill associated therewith will inure solely to the benefit of Customer.

7. Indemnities, Disclaimer and Limitation of Liability

7.1 Indemnification by Field59. Field59 hereby agrees to indemnify, defend and hold harmless Customer, its affiliates, assigns, respective directors, officers, agents and employees, from and against any loss, claim, judgment, fine, penalty, liability, damage, action, or cause of action (including reasonable attorneys’ fees) resulting from a third party claim related to (a) any breach by Field59 of its covenants, representations, warranties, agreements or obligations made in this Agreement, or (b) any reckless act, negligent act, or willful misconduct by Field59.

7.2 Indemnification by Customer. Customer hereby agrees to indemnify, defend and hold harmless Field59, its affiliates, assigns, respective directors, officers, agents and employees, from and against any loss, claim, judgment, fine, penalty, liability, damage, action, or cause of action (including reasonable attorneys’ fees) resulting from a third party claim related to any breach by Customer of its covenants, representations, warranties, agreements or obligations made in this Agreement.

7.3 Notice; Additional Rights & Responsibilities. The foregoing indemnities are conditioned upon: (a) written notice by the indemnified party to the indemnifying party of the claim for which indemnification is claimed; (b) the opportunity to have reasonable control of the defense by the indemnifying party, with counsel reasonably acceptable to the indemnified party, and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request, all provided, however that failure to provide reasonable notice, control and/or cooperation shall not relieve the indemnification obligations hereof unless the party seeking to avoid such obligations can demonstrate material prejudice to the defense of such claim caused thereby. The indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of the claim against the indemnified party.

7.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL FIELD59 BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF EVEN IF FIELD59 HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE ENTIRE LIABILITY OF FIELD59 AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS FOR LOSS, DAMAGES, AND CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE SUM OF THE FEES PAID BY CUSTOMER TO FIELD59 IN THE PREVIOUS TWELVE (12) MONTHS OF THIS AGREEMENT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.

8. General

8.1 Confidentiality.

1. Confidential Information. With respect to each party hereto, “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with that party. “Confidential Information” means all nonpublic information disclosed by one party, its affiliates, or the agents, employees or consultants of any of the foregoing (collectively, the “Disclosing Party”) to the other party, its affiliates, or the agents, employees or consultants of any of the foregoing (collectively, the “Receiving Party”), that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (i) nonpublic information relating to the Disclosing Party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (ii) third-party information that the Disclosing Party is obligated to keep confidential, and (iii) the nature, content and existence of this Agreement and any discussions or negotiations between the parties. Confidential Information may be written, oral, expressed in electronic media or otherwise disclosed, and may be tangible or intangible. Confidential Information disclosed by Field59 to Customer includes, without limitation: this Agreement, all instructions to Customer from Field59 regarding the proper functioning and use of the Field59 Technology and the Services.

2. Exceptions. Information or materials disclosed under this Agreement shall not constitute Confidential Information if the information or materials: (i) are in or enter the public domain through no fault of the Receiving Party; (ii) are received by the Receiving Party properly and lawfully from a third party without restriction on disclosure and without knowledge or reasonable suspicion that the third party’s disclosure is in breach of any obligations to the Disclosing Party (and can be evidenced by prior written records); (iii) are or have been developed by the Receiving Party completely independent of the delivery of Confidential Information hereunder (and can be evidenced by prior written records); (iv) are approved for public release by written authorization of the Disclosing Party; or (v) are in the possession of the Receiving Party prior to receipt from the Disclosing Party.

3. Limited Use Obligations. With regard to Confidential Information received from the other party, each party agrees: (i) that it will maintain and preserve the confidentiality of such Confidential Information, including, without limitation, taking such steps to preserve the confidentiality of the Confidential Information as it takes to preserve the confidentiality of its own similar confidential information, but in no case less than reasonable precautions for the type of information disclosed; (ii) that Receiving Party will disclose Confidential Information to its own employees, consultants and agents only on a “need-to-know” basis, and only to such employees, consultants and agents who have agreed to maintain the confidentiality thereof; (iii) that Receiving Party will not disclose Confidential Information to any third party (excepting personal legal and accounting advisors, if all of such individuals have agreed to maintain confidentiality thereof) without the express written consent of the Disclosing Party; and (iv) that it will use such Confidential Information solely to perform its obligations pursuant to this Agreement; and (v) that it will not otherwise use Confidential Information for its own benefit or the benefit of any third party. Each party agrees that it is responsible for any breach of this Agreement by its Affiliates, or the agents, employees or consultants of any of the foregoing. Each party will immediately notify the other Party if it is aware of any unauthorized disclosure of any Confidential Information by that party, its Affiliates, or the agents, employees or consultants of any of the foregoing, or any other entity.

8.2 Survival. The following provisions of this Agreement will survive termination: Sections 3.1, 3.2, 7 and 8, together with accrued liabilities and any provisions that state that they are effective after termination.

8.3 Notices. Any notice, request, demand or communication required or permitted under this Agreement shall be in writing and shall be delivered personally, by receipted courier service, or by certified first class mail, or via email, to the addresses indicated on this Agreement, or such other address as a party shall have previously specified to the other in writing. Any Customer notice to Field59 shall include an email copy to legal@field59.com.

8.4 Force Majeure. Each party, provided it uses reasonable efforts to avoid or mitigate any such delay shall be excused for delays in performance, other than delays in payments of any amounts payable by one party to the other, due to acts of God, or acts of the other party; due to interruption or changes in the operation or functionality of the Internet, or due to any other cause to the extent beyond the parties’ reasonable control; provided that if such delay shall continue for more than three (3) months, then either party shall have the right to terminate this Agreement upon written notice to the other party.

8.5 Assignment. This Agreement and any rights or obligations under it may be freely assignable with notice to the other party when such assignment relates to the sale of all or substantially all of such party’s assets to (or a merger with) a third party, provided the third party assumes all of such party’s obligations under this Agreement.

8.6 Successors; Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties, and any entity or person who may become a party hereto and their respective successors and permitted assigns.

8.7 Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Wisconsin, without regard to its conflict of law rules. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Dane County, Wisconsin. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

8.8 Independent Contractor. Field59, in rendering performance under this Agreement, is acting and shall act solely as an independent contractor. Customer does not undertake by this Agreement or otherwise to perform any obligation of Field59, whether by regulation or contracts. In no way is Field59 to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding. Publisher shall be liable for all local, state, and federal sales, use, withholding, excise, personal property, value-added or other similar taxes, assessments or duties which may now or hereafter be imposed upon this Agreement or which are based on or in any way relating to this Agreement or any Services related thereto, excluding, however, taxes measured on Field59’s income.

8.9 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions will remain valid and unimpaired, and will continue in full force and effect.

8.10 Counterparts. This Agreement and any modifications or amendments hereto may be executed in one or more counterparts, all of which will be considered one and the same agreement, and will become effective when one or more counterparts will have been signed by each party and delivered to the other party.

8.11 Public Announcement. Field59 may issue a mutually agreed upon press release disclosing the relationship established by this Agreement and may identify Customer as a client.

8.12 Customer Feedback. In connection with this Agreement, Customer agrees to provide Field59 with reports from time to time at mutually agreeable times and in a format requested by Field59 which details (i) the results of Customer’s use of Field59 Services, including any defects found therein and information reasonably necessary for Field59 to evaluate such defects, and if applicable, (ii) recommendations for changes or modifications to the Field59 Services (all of the foregoing, the “Feedback”). The parties acknowledge that any and all such Feedback as well as any other communications between the parties pursuant to this Section 8.12 shall be treated as Field59’s Confidential Information as described in and subject to the restrictions set forth in Section 8.1. Field59 shall own all Feedback, and Customer hereby assigns and agrees to assign any and all rights, title and interest in and to the Feedback to Field59. Without limiting Field59’s rights to use the Feedback, Customer expressly understands that Field59 may use Feedback in its sales and marketing efforts. Customer further agrees that as the Feedback is Field59’s confidential information, it shall not make any Feedback, positive or negative, publicly available in any form or fashion without the prior written consent of Field59.

8.13 Complete Agreement. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter and may only be amended, modified, or waived in writing, signed by both parties. The waiver by either party of any breach, responsibility or obligation shall not be construed as a waiver of any other breach, responsibility or obligation or prevent any party from enforcing the Agreement’s terms and related rights and responsibilities at any other time.

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