MSA FOR CONTENT IN MOTION (MOBILEWORKS)

This MASTER SERVICE AGREEMENT (THE “AGREEMENT”) is entered into by and between the CUSTOMER (as defined in the applicable Order) and OLAPIC, INC. (“OLAPIC” or “US”), effective as of the date set forth in the applicable Order.

CUSTOMER AND OLAPIC HEREBY AGREE TO THE FOLLOWING:

This Agreement governs Olapic’s provision and Customer’s use of the Olapic Services as identified in a Content in Motion (MobileWorks) Order Form executed by Customer and Olapic. This Agreement includes all Orders executed by Customer and Olapic and all attachments, and represents the parties’ entire understanding regarding the Services. This Agreement shall control over any different or additional terms of any non-Olapic purchase order or other non-Olapic order forms, and no terms included in any such non-Olapic purchase order or other non-Olapic order forms shall apply to the Services. In the event of a conflict between this Master Service Agreement and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the corresponding Order.

1. DEFINITIONS

“Customer Content” means any and all audio, video, text, images, data, services, advertisements, promotions, URLs, keywords, navigational elements, links, pointers, technology and software content provided by Customer.
“Intellectual Property Rights” means all rights, title and interest (whether legal, equitable or otherwise) associated with any and all patents, copyrights, trademarks, trade secrets, trade names, trade dress, database rights, inventions, compilations, know-how and domain names and all other intellectual property rights of any sort throughout the world.
“Marks” means trade names, trademarks, trade dress and service marks of a party.
“Order” means a document for placing orders hereunder, including addenda and supplements thereto, entered into by Customer and Olapic. Orders shall be deemed incorporated herein by reference.
“Services” means the services that are performed by Olapic to Customer under a corresponding Order.
“Term” means the term of the subscription set forth in an Order for use of Olapic Services.

2. TERM AND TERMINATION

2.1 This Agreement shall commence on the Effective Date and, unless earlier terminated as set forth below or as otherwise specified in the applicable Order, shall continue to remain in effect until the expiration or termination of the Term of all Orders of Customer.

2.2 If a party materially breaches any term or condition of an Order, or any term or condition of this Agreement as it relates to an Order, then the non-breaching party may send the breaching party a notice of breach that specifies in reasonable detail the nature of the breach. Upon receipt of such notice, the breaching party shall immediately correct the breach. If the breaching party fails to cure such breach within thirty (30) days after receiving such notice, then the non-breaching party may immediately terminate the Order and/or the Agreement by delivering a written notice of such immediate termination to the breaching party.

2.3 This Agreement may be terminated immediately upon written notice if either party becomes insolvent, is named in a petition for bankruptcy that is not dismissed within sixty (60) days after filing, ceases to function or conduct operations in the normal course of business, or makes an assignment for the benefit of its creditors.

2.4 Termination of this Master Service Agreement will result in the termination of any previously entered into Orders that incorporate this Master Service Agreement. Terminating this Master Service Agreement terminates the ability of either party to enter into subsequent Orders that incorporate the terms of this Master Service Agreement.

2.5 Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that: (i) all obligations that accrued prior to the date of termination and all remedies for breach of this Agreement shall survive; and (ii) the provisions of this Section 2.5, Section 4 (Proprietary Rights), Section 5 (Confidentiality), Section 7 (Limitation of Liability), Section 8 (Indemnification), Section 11 (General Provisions) and any other provisions of this Agreement necessary to give effect thereto shall survive.

3. LICENSE GRANT

3.1 Customer grants Olapic a worldwide, royalty-free, non-exclusive, license to use, reproduce, distribute, transmit and display Customer Content solely as necessary to provide the Services.

4. PROPRIETARY RIGHTS

4.1 The Customer Content and Customer Marks may include proprietary and confidential materials of Customer, protected under copyright, trade secret, and other intellectual property laws. Except for the rights and licenses expressly set forth in this Agreement, Olapic acknowledges and agrees that Customer solely owns and shall retain all right, title and interest, including Intellectual Property Rights, in and to the Customer Content and Customer Marks.

4.2 All feedback provided by Customer or any other party relating to the Services shall be owned by Olapic (excluding feedback provided on specific videos purchased by Content in Motion customers), and Customer hereby does and shall make all assignments and take all reasonable actions necessary to accomplish the foregoing ownership. Any rights in the Services not expressly granted herein are reserved by Olapic.

5. CONFIDENTIALITY

5.1 Olapic or Customer may disclose to the other party certain confidential or proprietary information (“Confidential Information”), including but not limited to all information regarding Customer or Olapic. Confidential Information shall include information which a party identifies as confidential or which under the circumstances should reasonably be recognized as confidential, whether shared orally, visually or in writing before or after the Effective Date. The party receiving Confidential Information agrees not to disclose such information to any third party other than its employees, agents, advisors, service providers and contractors who have a need to know and who agree to keep such information confidential, take reasonable and prudent steps and security measures to prevent the Confidential Information from being disclosed to any third party, and not to use such information except as necessary to perform its obligations under this Agreement. The obligations of this Section 5 shall not apply to information which: (i) is now in the public domain or which becomes generally available to the public through no fault of the receiving party; (ii) is already known to, or in the possession of, the receiving party prior to disclosure by the disclosing party as can be demonstrated by documentary evidence; (iii) is disclosed on a non-confidential basis from a third party having the right to make such disclosure; or (iv) is independently developed by the receiving party without use of the Confidential Information of the other party as can be demonstrated by documentary evidence. Each party may make disclosures of Confidential Information of the other party as required by law or government authority. The confidentiality provisions of this Section 5 shall continue for a period of five (5) years past the termination of this Agreement.

6. REPRESENTATIONS AND WARRANTIES

6.1 Each party represents and warrants to the other party that (i) it has and shall have all the necessary rights, approvals, consents and permissions to enter into this Agreement and to grant the rights and licenses herein, and (ii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

6.2 Customer represents and warrants to Olapic that (i) Customer owns all rights in and to the Customer Content, (ii) if any Customer Content is subject to third party proprietary rights, Customer has all necessary licenses, rights, consents, and permissions to provide the Customer Content to Olapic and to permit Olapic to perform the Services for Customer using the Customer Content, and (iii) Olapic’s use of the Customer Content to perform the Services will not violate the rights or any third party or any law.

7. LIMITATION OF LIABILITY

7.1 NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (i) ANY ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (iii) ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO ANY INDEMNIFICATION OBLIGATION HEREUNDER, BREACH OF A PARTY’S OBLIGATIONS PURSUANT TO SECTION 5, OR A PARTY’S WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO OLAPIC IN THE PRECEDING TWELVE (12) MONTHS.

8. INDEMNIFICATION

8.1 Customer shall defend, indemnify and hold harmless Olapic and its officers, directors, agents, affiliates, distributors, franchisees and employees from and against any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys’ fees arising from infringement or violation of a third-party’s Intellectual Property Rights by the Customer Content or the Customer Marks.

8.2 If Olapic becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against Olapic by any third party, Olapic shall give the Customer prompt written notice of such matter. Customer shall have the right to control the defense of any action subject to this indemnification and Olapic shall have the right to participate in such defense at its own cost with counsel of its own choosing.

8.3 The indemnification obligations set forth in this Agreement are conditioned upon (i) Olapic providing Customer with prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at Customer’s expense); provided, however, that failure to give such notification shall not affect the indemnification provided under this Agreement except to the extent Customer shall have been materially prejudiced as a result of such failure, and (ii) Customer having sole control and authority to defend, settle or compromise such claim; except that Customer shall not enter into any settlement that affects Olapic’s rights or interests without the Olapic’s prior written approval.

9. DISCLAIMER

9.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, OLAPIC PROVIDES THE SERVICE “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY.

10. NOTICES

10.1 All notices under this Agreement will be in writing and in English and delivered to the parties at their respective physical or e-mail addresses stated herein or at such other address designated by written notice. Olapic may provide general notices applicable to all Olapic customers by means of general notices on customer dashboards of the Services, and notices specific to Customer by electronic mail to Customer’s e-mail address on record with Olapic or by written communication sent by first class mail or pre-paid post to Customer’s address on record with Olapic.

10.2 Customer shall send notices to Olapic, Inc. at 250 Vesey Street, 4th Floor, New York, NY 10281 Attn: Legal. Customer may provide notices by personal delivery, overnight delivery, first class mail or pre-paid post.

10.3 Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

11. GENERAL PROVISIONS

11.1 This Agreement, including all attachments hereto and all Orders, represents the parties’ entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting or additional communications. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. The Agreement may be amended only by written agreement signed by both parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

11.2 In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

11.3 This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. Notwithstanding the foregoing, without consent, Olapic may assign the Agreement to any successor to all or substantially all of its business (whether by sale of assets or equity, merger, conversion, consolidation or otherwise). Any assignment in violation of this section shall be deemed null and void ab initio. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assignees of the parties hereto.

11.4 Olapic may publicize the existence of this Agreement and the business relationship between the parties, but the specific terms of this Agreement and any Order Forms shall remain confidential. Additionally, Olapic may use Videos (as defined in the Order Form) for the purpose of demonstrating such Videos to other Olapic customers.

11.5 This Agreement shall be governed by the laws of the United States of America and the State of New York regardless of choice of law principles. The sole jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state and U.S. federal courts located in New York County, New York. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by New York state or U.S. federal law.

11.6 The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

11.7 Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 9, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.