Critical Mention Master Service Agreement

By January 6, 2002Content

THIS MASTER SERVICE AGREEMENT, including the Fee Schedule, Statement of Work and other exhibits and agreements referred to herein and incorporated herein by reference, (the “Agreement”) is made as of the Effective Date (defined below) between Critical Mention, Inc. (“CMI”) and the client (the “Client”) identified on the Statement of Work (defined below) (each a “Party” and together the “Parties”). 

1.)     TERMS OF USE. This Section sets forth the terms and conditions governing CMI’s provision and Client’s use of certain CMI products and services (collectively and individually the “Service”) ordered by Client pursuant to a certain statement of work (the “Statement of Work”) manually executed by Client and delivered to CMI.  CMI grants Client a limited, non-exclusive license to use the Service during the Term and to view data, including digitized broadcast television, text and/or other clips provided via the Service (collectively, the “Data”), in each case according to the Terms of Use specified herein. CMI will monitor various sources for mentions of words or phrases specified by Client (each word or phrase a “Saved Search”).  CMI reserves the right, in its sole and absolute discretion, to refuse to undertake any query that CMI reasonably deems improper or unlawful.  Clients can access the Data containing the Saved Searches through the Service.  Using the Service’s functionality, Clients shall use the Data for private, research, educational and non-commercial use only. Client may circulate the Data within the Client’s organization, and may allow its agents contractors and clients (in the case of agencies who use the Service on behalf of one or more clients) (“Permitted Client Recipients”) and affiliated entities via hard copy, digital copy or link distribution through e-mail, as permitted in the Service, but Client shall not publicly broadcast, transfer, display, or otherwise publicly exhibit any part of the Data by any means including posting clips to a public web site on the Internet.  Any resale or redistribution of the Data, and any downloading or storage of the Data other than for private research or reference by Client or Permitted Client Recipients, is strictly prohibited. Client shall not create derivative works from, resell, reverse engineer or otherwise redistribute the Data, the Service or CMI’s technology.  Unless otherwise specified herein or permitted in the Service (ie. downloaded), Client may access the Data for as long as it is maintained in the platform after the original broadcast date.  Neither Client nor Permitted Client Recipients may (a) resell the Data supplied hereunder (including any portion of the Data); or (b) distribute or transfer, by any means whatsoever, any Data received via the Service (or copies thereof), to any person, organization or institution other than other Permitted Client Recipients.  Client warrants that the Data provided to Client through the use of the Service will not be resold, republished or otherwise systematically distributed to third parties in any form, including but not limited to an extranet or internet site, or in the case of Bloomberg or CNN content, a corporate intranet site.  Notwithstanding anything to the contrary in this Section, Client may, via CMI functionality, post, in electronic format, individual broadcast television clips, articles, reports or the like, received via the Service to an intranet site for access and use solely by Permitted Client Recipients.  Client agrees to use reasonable efforts to prevent unauthorized copying or distribution of the Service, Data or CMI’s technology. CMI retains all rights, title and interest in CMI’s technology and any intellectual property rights of whatever nature throughout the world covering or embodied by the Service, Data or CMI technology.

2.)     PAYMENT TERMS, TAXES.  CMI will invoice Client, and Client will pay CMI, in accordance with the fee schedule (the “Fee Schedule”) on the Statement of Work. By accepting this Agreement, Client acknowledges that it has read and agrees to be bound by the Fee Schedule.  CMI may increase fees set forth on, or otherwise revise, the Fee Schedule from time-to-time, in which case CMI will send an email notifying Client that the Fee Schedule has been changed and including a hypertext link to the most current updated Fee Schedule.  Client agrees that it shall be bound by any change in the Fee Schedule for which Client receives notice as contemplated above unless Client ends the Service by providing CMI with written notice, not later than five (5) business days after delivery of the email notifying Client of the updated Fee Schedule, of its election to terminate the Agreement in accordance with Section 3 below.  CMI may charge additional fees for downloads of licensed content.  All payments are non-refundable.  All amounts payable under this Agreement are exclusive of all sales and other taxes.

3.)     EFFECTIVENESS, ACCEPTANCE, TERM AND TERMINATION. This Agreement shall be effective, and deemed accepted and agreed by Client, as of the date Client delivers the manually executed Statement of Work to CMI (the “Effective Date”). The Initial Term of this Agreement shall commence on the Effective Date and extend through the Initial Term End Date set forth on the Statement of Work (the “Initial Term”).  The Initial Term together with any subsequent renewal terms shall be referred to herein as the “Term.”

4.)     DISCLAIMERS.  Client acknowledges and agrees that in providing the Data and Service, CMI will supply information, including news mentions, prepared by others (“Third Party Content”).  The Data and Service provided by CMI in connection with this Agreement are for informational purposes only.  CMI does not represent, warrant or guarantee, and shall not be responsible for, the accuracy, completeness, timeliness, sequence, adequacy, reliability or editorial approach of any Third Party Content and shall have no liability for any action taken or loss incurred as a result of the inability to access, or the use of, the Third Party Content, Data or the Service.  Client acknowledges and agrees that the Third Party Content monitored by CMI is subject to copyrights owned by third parties. CMI does not imply, represent or warrant, by virtue of supplying information incorporating Third Party Content, that CMI owns any copyright in the Third Party Content or Data, or that CMI holds or grants any license, whether to copy, display, perform, translate, distribute, broadcast or otherwise transfer television clips or any text or graphics provided, including news mentions or links to such mentions under copyrights owned by third parties.  Client’s use of any broadcast television clips, text or graphics provided hereunder, other than in accordance with the terms set forth herein, shall be at Client’s sole risk and expense.  Further, Client’s use of information obtained through the Service may be subject to restrictions imposed by one or more third-party copyright owners, and Client agrees that it shall comply with any such restrictions.  CMI DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY CONTENT, SERVICE AND DATA.  CMI does not represent or warrant that any specific source will be monitored by CMI. CMI reserves the right to change the sources that it monitors at any time.  Certain sources may limit Client’s ability to view content or access links through the Service. Client agrees that it shall comply with any such restrictions.

5.)     LIMITATION OF LIABILITY. Neither Party to this Agreement or its respective affiliates shall be liable to the other Party, or its affiliates, for any indirect, incidental, punitive, exemplary, special or consequential

damages arising out of or in connection with this Agreement, or any Services, content (including Third Party Content), Data, information and other materials offered by CMI, including without limitation, lost revenues, lost profits, loss of business, loss of goodwill or loss of Data, even if CMI has been advised of the possibility of such damages, and regardless of the nature of the cause of action.  In no event shall CMI’s aggregate liability for damages arising out of or in connection with this Agreement exceed the total fees paid by Client to CMI during the twelve (12) month period prior to the date any such damages are incurred.

6.)     CONFIDENTIALITY.  All non-public information disclosed by a Party hereto to the other Party shall be deemed confidential information of the disclosing Party and will be held in strict confidence by the receiving Party.  CMI shall not use such informa­tion other than for the provision of Services to Client.   Confidential information shall not include information which is (i) in or becomes part of the public domain, (ii) demonstrably known to the receiving Party previous­ly, (iii) independently developed by the receiving Party outside of this Agreement or (iv) rightfully obtained by the receiving Party from third parties.

7.)     NOTICE.  Unless otherwise expressly set forth elsewhere in this Agreement, any notices required to be provided to CMI hereunder shall be sent to CMI at the following fax or email address:  212-898-0121 or or such other fax or email address as CMI may specify from time-to-time in an email sent to Client’s then current email address as indicated in the Client’s account details maintained by CMI.  Client’s email address and other account details maintained by CMI shall be consistent with information set forth on the Statement of Work unless Client notifies CMI of any change(s) to such information in a writing sent to CMI via fax or email address in accordance with the foregoing.  Notices sent to CMI shall be effective only upon Client’s receipt of an automated delivery confirmation.  Client is solely responsible for ensuring that Client’s email address and contact information as maintained by CMI is current.

8.)     MISCELLANEOUS. In the event of an interruption to Client’s access to the Service, CMI will correct such interruption within a single business day of receiving notification from Client of any such interruption, unless such interruption is caused by a force majeure as set forth herein.  Neither Party shall be liable for any delay or failure to perform under this Agreement if caused by conditions beyond its control (“force majeure”) but no such event shall relieve Client of Client’s obligations to make payment to CMI. The affected Party shall promptly notify the other Party of the nature and anticipated length of continuance of such force majeure. If such failure continues for more than one month, either Party may terminate this Agreement. Neither Party may assign this Agreement without the consent of the other Party, except in the event of a merger, acquisition, restructuring or sale of all or substantially all of a Party’s assets or, in the case of an assignment by CMI only, a reorganization of CMI resulting in an assignment of this Agreement to an affiliate of CMI.  The Parties hereto are independent contractors, and nothing in this Agreement shall be construed as creating an agency, partnership, joint venture or any other form of legal association between the Parties.  This Agreement, the Statement of Work, Fee Schedule and other exhibits and agreements referred to herein and incorporated herein by reference constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous oral or written arrangements, representations or understandings relating thereto and may be executed in two or more counterparts, and each counterpart may be exchanged by facsimile and shall be deemed an original thereof.  Each Party may use the other Party’s name on an appropriate section of its web site and in press releases, provided that any further use of either Party’s name or marks by the other Party must be mutually approved. The laws of the State of New York govern this Agreement, and Client irrevocably submits to the exclusive jurisdiction of the State and Federal courts located in the State, City and County of New York.  In the event of a dispute under this Agreement, the prevailing party shall be awarded attorney’s fees and related costs and expenses, including costs of expert witnesses, non-expert witnesses, filing fees, reproduction, transportation, room, board and other costs and expenses of whatever nature incurred as a result of or otherwise in connection with such dispute and the resolution thereof.