MASTER SERVICES AGREEMENT -
Confidential
This Master Services Agreement and attached
Schedules (collectively, the "Agreement") is entered into on
this 11 th day of July , 2008 (the
"Effective Date") between Ripple6, Inc., with a principal place of
business at 322 Eighth Avenue, New York, NY 10001 ("Ripple6") and
Sahara Media, Inc. , with a principal place of business at 75
Franklin St, NY, NY 10013 ("Client") (each, a "Party" and,
collectively, the "Parties").
WHEREAS, Ripple6 owns the Ripple6 Platform (as
defined below); and
WHERF.AS,
Client operates the Client Site (defined below);
WHEREAS, Client
has requested that Ripple6 customize and host the Site (defined
below); and
WHEREAS,
Ripple6 has agreed to provide such services on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereto, intending to be legally bound
hereby, do hereby agree as follows:
1.
DEFINITIONS. As
used in this Agreement, the following terms have the respective
meanings set forth below:
"Confidential Information"
means all information exchanged by
one Party to the other Party under this Agreement. For the
avoidance of doubt, Confidential Information of Ripple6 includes,
but is not limited to, all Ripple6 Intellectual
Property.
"Database" means an electronic database consisting of data
provided by users of the Site and actions related to such users'
use of the Site.
"Development
Fees" has the meaning set
forth in Section 3.1
"Development
Services" has the meaning
set forth in Section 2.1.
"Fees" means the Development Fees, the Hosting Fees and
the Maintenance and Support Fees.
"Ongoing
Services Fees" has the
meaning set forth in Section 3.2.
"Ongoing
Services" has the meaning
set forth in Section 2.2.
"Initial
Term" has the meaning set
forth in section 10.1.
"Intellectual Property Rights"
means all intellectual and
industrial property rights, including, without limitation,
copyrights, mask work rights, moral rights, trade secrets, patent
rights, rights in inventions, trademarks, trade names, and service
marks (including applications for, and registrations, extensions,
renewals, and re-issuance of the foregoing).
"Maintenance
and Support Fees" has the
meaning set forth in Section 3.3.
"Maintenance
and Support Services" has
the meaning set forth in Section 2.3.
"Renewal
Term" has the meaning set
forth in Section WA.
"Ripple6
Intellectual Property" has the meaning set forth in Section
5.1.
"Sahara
Media Intellectual Property" has the meaning set forth in Section
5.4.
"Ripple6
Platform" means certain
proprietary technology and software (object code and source
code) and tools owned by Ripple6, including enhancements,
modifications, improvements and derivative works thereof, and
related methodologies, processes, know-how and all Intellectual
Property in and to the foregoing, and all derivative works and
improvements thereto.
"Site" means (_____).
"Services" means the Development Services, the Ongoing
Services, the Maintenance and Support Services, and any other
services provided under this Agreement.
"Term" means the Initial Term and all Renewal
Terms.
"Work
Product" means all work
product developed by or on behalf of Ripple6 as a result of the
Services, all Intellectual Property Rights in and to such work
product, and all derivative works and improvements I
hereto.
2.1
Ripple6 will develop arid customize the Site in accordance
with the specifications set forth on Schedule 1 attached
hereto (the "Development Services"). The Site shall include
"Powered by Ripple6" branding and the Mark in the size and position
of the branding and logo referred to in Schedule 1. During
the Term, the Parties may agree in writing from time to time to
have Ripple6 provide development services in addition to those set
forth on Schedule 1 for an additional cost.
2.2
Ripple6 shall host and manage the Site for Client and shall provide
additional ongoing services Ihr the Site including, without
limitation, Ripple analytics, account management and site
enhancements, all in accordance with Schedule 2 attached
hereto (the "Ongoing Services").
2.3
Ripple6 shall provide Client with maintenance and
support services in accordance with Schedule 3 attached hereto (the
"Maintenance and Support Services").
3.1 In
consideration for the Development Services, Client shall pay
Ripple6 the fees set forth in Schedule 1 (the
"Development Fees").
3.2 in
consideration for the Hosting Services, Client shall pay Ripple6
the fees set forth in Schedule 2 (the "Ongoing Services
Fees").
3.3 In
consideration for the Support and Maintenance and Support Services,
Client shall pay Ripple6 the fees set forth in Schedule 3
(the "Maintenance and Support Fees").
3.4 Unless
otherwise set forth in the applicable Schedule, the Fees shall he
due within thirty (30) days of the date of invoice. Past due
amounts shall bear interest at the rate of one percent (1 %) per
month.
4.
ADVERTISING AND REVENUE
SHARE. During the
Term, the Parties may, from time to time, agree to conduct certain
marketing programs based on the Ripple6 Platform. For each such
marketing program, the Parties shall agree in writing to the
applicable revenue share.
5.1
As between the Parties, Rippled owns all right, title and interest
in and to the Work Product, the Rippled Platform and the Mark
(collectively, the "Ripple6 Intellectual Property"). Client
shall have no right to use the Rippled Intellectual Property for
any purpose other than as expressly provided in this
Agreement.
5.2 Client
hereby grants to Rippled a nonexclusive, nontransferable, personal
license to use the Rippled Intellectual Property solely in
connection with the Site.
5.3 Client
shall own all right, title and interest in and to the Database and
all data contained therein. Client hereby grants Rippled a
non-exclusive, royalty-free, fully paid up license to (i) use the
Database and all data contained therein as necessary to provide the
Services, (ii) aggregate the data contained in the Database (the
"Aggregate Data"), share such Aggregate Data in a non-personally
identifiable manner to third parties. All Non-Aggregated Data and
Data which may contain personally-identifiable information is for
Internal Use only and is limited to the services contemplated
herein.
5.4 As
between the Parties, Sahara Media owns all right, title and
interest in and to all trademarks, service marks, logos and brands
related to Honey, Honey Magazine, The Hive and other Sahara Media
properties (collectively, the "Sahara Media Intellectual
Property"). Ripple 6 shall have no right to use the Sahara Media
Intellectual Property for any purpose other than as expressly
provided in this Agreement.
5.5 Rippled
hereby grants Client a non-exclusive, non-transferrable right to
use the Rippled brand name and Mark for marketing purposes to
strategic partners.
6.
REPRESENTATIONS AND
WARRANTIES.
6.1 Each
Party represents and warrants that (i) it is duly authorized to
execute and perform its obligations under this Agreement; (ii) this
Agreement is a valid and binding agreement enforceable against it
according to its terms; (iii) the execution and performance of this
Agreement does not, and will not, violate or conflict with the
terms of any existing agreement or understanding to which it is a
Party, including, but not limited to, any non-disclosure,
non-compctc or other similar obligations to any other person or
entity; and (iv) the execution and performance of this Agreement
does not, and will not, violate or conflict with any law, rule,
regulation, judgment or order of any court or other adjudicative
entity binding on it.
6.2 Rippled
represents and warrants that the Services provided under this
Agreement shall be performed by qualified individuals, in a
professional and workmanlike manner.
6.3
EXCEPT AS EXPRESSLY PROVIDED HEREIN, RIPPLE6 MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE
SERVICES, AND ALL IMPLIED REPRESENTATIONS AND WARRANTIES ARE
EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
7.1
Each Party shall maintain the Confidential Information of the
other Party in strict confidence, taking the same precautions that
it uses to protect its own Confidential Information, but in no
event less than reasonable care to prevent the unauthorized
disclosure of any part of the Confidential Information.
7.2
In the event the receiving Party becomes or may become legally
compelled to disclose any Confidential Information (whether by
deposition, interrogatory, request for documents, subpoena, civil
investigative demand or other process or otherwise), the receiving
Party shall provide the disclosing Party with prompt written notice
of such requirement so that the disclosing Party may seek a
protective order or other appropriate remedy and/or waive
compliance with the terms of this Section 7. lii the event
that such protective order or other remedy is not obtained, or that
the disclosing Party waives compliance with the provisions hereof,
the receiving Party shall furnish only that portion of Confidential
Information which it is legally required to disclose, and shall use
its best efforts to insure that confidential treatment shall be
afforded such disclosed portion of Confidential
Information.
7.3
The receiving Party acknowledges that in the event of a breach of
the provisions of this Section 7 by the
receiving Party, substantial injury could result to the disclosing
Party and money damages will not be a sufficient remedy for such
breach. Therefore, in the event that the receiving Party engages
in, or threatens to engage in, any act which violates any provision
of this Section 7, the disclosing Party shall be entitled
to, in addition to all other remedies which may be available to it
under law,
