This Consulting Services Agreement involves
Title: MASTER SERVICES AGREEMENT
Governing Law: New York Date: 9/24/2008
Law Firm: Lowenstein Sandler
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. FEES AND PAYMENT
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. INTELLECTUAL PROPERTY
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, seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Section 7. The disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
7.4 Upon the expiration or earlier termination of this Agreement, or at any time upon the receiving Party's request, the receiving Party shall return to the disclosing Party all Confidential Information in its possession.
8. INDEMNIFICATION. Ripple6 shall indemnify, defend and hold harmless Client from and against any claim, suit or proceeding brought by a third party against Client to the extent that it is based on or arises from any assertion that any Work Product infringes or misappropriates any Intellectual Property Right of any third party, provided that (I) Client promptly notifies Ripple6 in writing of any claim, suit or proceeding, (ii) Client fully cooperates with Ripple6 with regard to the defense of any claim, suit or proceeding, and (iii) such claim, suit or proceeding does not arise as a result of any specifications or instructions provided by Client to Ripple6 . Ripple6 shall have full control of any such claim, suit o