Cohley will provide Client with access to Cohley’s software-as-a-service platform (“Platform”) and associated services set forth in an Order Document. Client will have the non-exclusive, non-transferrable, non-sublicensable right to remotely access and use the Platform solely for its own benefit. Cohley will use diligence efforts to ensure the Platform is available on a 24/7 basis (subject to downtime for scheduled maintenance, emergency maintenance, and matters outside of Cohley’s control). Client will not (and will not allow any third party to): (i) reverse engineer or decompile the Platform, (ii) modify or create derivative of the Platform, or (iii) use the platform for the benefit of any third party.
2.1 Cohley Fees. As consideration due Cohley regarding the subject matter of this Agreement, Client will pay Cohley the fees set forth in the applicable Order Document. Unless otherwise agreed in an Order Document, Client must provide Cohley with its credit card, bank account, or other payment method pursuant to which Client authorizes Cohley (and its payment processor) to use such method for all fees owed (i.e. automatic billing). Except as otherwise set forth in an Order Document, fees are due on receipt of invoice or when otherwise indicated as payable in an Order Document. If this Agreement is terminated for Cohley’s breach, Cohley will promptly refund all amounts paid in advance for the remainder of the term. In the event of any other termination, and except as set forth in Section 6, all fees for the full term (meaning, as if termination had not occurred) are non-cancellable and non-refundable.
2.2 Creator Fees. Client’s procurement of Creator Content will require Client to pay fees to the applicable Creators. Such payments will only be made by Client via the payment functionality provided by the Platform (and Client hereby acknowledges it is responsible for such fees). Client will not attempt to circumvent the Platform’s payment functionalities (such as by offering to pay Creators ‘outside’ of the Platform). All fees due to Creators will be as specified within the Platform. Client authorizes Cohley (and its payment processor) to charge Client’ credit card for such purposes. Creator compensation is not included in the total fee noted in the Order Document unless explicitly stated.
2.3 Sales Tax. Sales tax is a legal requirement for the services and products that Cohley provides in most states, and Client is responsible for the entirety of the sales tax amount. Sales tax is calculated based on the Client's primary business location. If Client is tax exempt, Client must provide a sales exempt form and Cohley will update its records accordingly.
2.4 Late Payment. Late fees will be subject to a finance charge of 1.5% per thirty (30) day period (or, if less, the greatest amount allowed by applicable law). In addition, if fees are late, Client will reimburse Cohley for all costs of collection (including attorneys’ fees).
3.1 Content Rights. The Platform is a service which helps facilitate Client’s engagement of independent, third party creators (“Creators”) to provide creative content (“Creator Content”). Pursuant to Cohley’s standard terms and conditions executed with Creators (“Creator Terms”), and subject to Client’s payment obligations to Cohley and Creators hereunder, Client shall own the Creator Content (subject to the Pre-Existing IP license below). Cohley warrants that such ownership is properly conveyed by the Creator Terms. Creators retain ownership of any pre-existing, or otherwise separately developed, intellectual property therein (“Pre-Existing IP”). Subject to Client’s payment obligations to Cohley and Creators hereunder, Client is granted a non-exclusive, perpetual, irrevocable, fully paid-up, and license to use, distribute, perform, and display the Pre-Existing IP solely as incorporated into the applicable Creator Content. Usage rights and associated legal requirements of the content, when published on any digital channel or in print, is pursuant to a Client's own policy related to that specific channel. It is the Creator's responsibility to ensure that they secure all necessary releases and/or waivers if there are other individuals (not including a minor in situations where they are the legal guardian) in their submitted videos and that any/all music and sounds used are royalty free.
3.2 Disclaimer. Client acknowledges that: (i) Cohley does not control the Creators, and (ii) Cohley does not have any liability (such as for breach of this Agreement) for the Creator Content or the acts and omissions of Creators. Cohley is not an agent or representative of the Creators. To the extent Cohley assists in the resolution of any dispute between Client and any Creator, such assistance is a courtesy and Cohley does not guarantee any dispute resolution outcome. Client will indemnify and hold Cohley harmless from any against all claims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) arising from or in connection with any dispute between Client and any Creator.
Each party agrees that all business and technical information they obtain from the other are the confidential property of the disclosing party (“Confidential Information” of the disclosing party). The receiving party will not disclose any Confidential Information of the disclosing party to third parties and may only use Confidential Information for purposes of this Agreement. These obligations shall not apply to Confidential Information the receiving party can show: (a) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (d) was independently developed by employees or consultants of the receiving party without the use of Confidential Information.
Client may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Platform (or any associated Cohley Services) (“Feedback”). Cohley (and its successors and assigns) shall have an irrevocable, perpetual, worldwide, sublicensable, transferrable, fully paid-up, royalty free right and license to use, reproduce, modify, display, distribute and otherwise exploit all Feedback for any purpose.
Cohley shall indemnify and hold harmless Client from and against any third party claim of infringement of a patent, copyright, or trademark by the Platform, provided that Cohley shall have received from Client: (i) prompt written notice of such claim; (ii) sole control of the defense and settlement of the claim; and (iii) all reasonable necessary cooperation of Client with respect thereto. In the event any such claim arises, or Cohley believes may arise, Cohley may terminate this Agreement on thirty (30) days written notice to Client. In such an event, Cohley will promptly refund to Client all fees paid in advance for the remainder of the term. For clarity, this Section 6 does not apply to any Creator Content.
Cohley represents and warrants that: (i) the Platform will be free of substantial defects; (ii) the Platform will not infringe, misappropriate, or violate any intellectual property right of any third party; and (iii) Cohley shall comply with all applicable laws and regulations. EXCEPT AS SET FORTH IN THIS SECTION 7, COHLEY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, WITH RESPECT TO THE PLATFORM, SERVICES, DELIVERABLES AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. FOR CLARITY, COHLEY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE CREATOR CONTENT.
EXCEPT FOR A BREACH OF CONFIDENTIALITY, NEITHER PARTY WILL BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY: (I) INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE, (II) AMOUNTS IN AGGREGATE IN EXCESS OF THE FEES PAID TO COHLEY HERUNDER (OR, IF NO AMOUNTS HAVE YET BEEN PAID, THE CAP IS US$10,000), OR (III) MATTERS BEYOND THEIR REASONABLE CONTROL. IN ADDITION, COHLEY WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR CONTENT. COHLEY WILL HAVE NO LIABILITY FOR THE CREATOR CONTENT (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH THE USE, DISPLAY, OR DISTRIBUTION THEREOF BY CLIENT).
This Agreement will begin on the Effective Date and will terminate as set forth in this Section 9. Each Order Document will have the term set forth in the Order Document (“Subscription Term”). If no initial Subscription Term is set forth on an Order Document, the Subscription Term is one (1) year. Each Order Document will automatically renew for consecutive, renewal Subscription Terms of equal length to the initial Subscription Term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement on five (5) days written notice if there are no Order Documents in effect. In addition, either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within thirty (30) days from receipt of written notice of the breach (ten (10) days in the case of non-payment); provided that such notice provides sufficient detail regarding the breach and states the intent to terminate if the breach is not cured. All provisions which by their nature should survive termination – shall survive.
Except as otherwise expressly set forth in this Agreement, all notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three (3) days after being sent by prepaid certified or registered mail to the address of the party set forth in an Order Document or to such other address as such party last provided to the other by written notice.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by final and binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law. The arbitration shall be pursuant to the JAMS’ streamlined rules and procedures if available. The parties hereby consent to the arbitration in New York, New York. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), all disputes will be subject to the sole and exclusive jurisdiction of, and venue in, the state and Federal courts located in New York, New York.
Unless otherwise noted, Goldfish Social Inc. has the ability to use and reference Client's name and logo on its website, in marketing materials, and in email correspondence.
Neither party may assign this Agreement without the other party's written consent; provided that, either party may assign this Agreement to a successor to all or substantially all of its business or assets. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes, additions, modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to the subject matter hereof. To the extent there is a conflict between this Agreement and any Order Document, this Agreement will control. Order Documents are for administrative purposes only (such as setting out fees). Any different or additional legal terms or conditions included in an Order Document by Client will not apply.