Tapioca Software Platform Services Agreement
This SOFTWARE PLATFORM SERVICES AGREEMENT (“Agreement”) is entered into by and between Tapioca Mobile, Inc. (“Tapioca Mobile ”), a California corporation, with its business offices located at 7220 Trade Street, Suite 305, San Diego, CA 92126 and entity utilizing Tapioca Mobile’s technology “Customer”.
Background: Tapioca Mobile has developed a proprietary Intelligent Encoding Messaging-Based Media Platform (“Tapioca Platform”) to enable, among other things, companies to provide mobile multimedia (including but not limited to video, images, and audio) SMS (Short Messaging Services) and MMS (Multimedia Messaging Services) messages (“Rich Media Messages”) to their end users’ mobile handsets. Customer now desires to conduct a deployment of the Tapioca Platform service (“Service”). By utilizing the Service, Customer agrees to the conditions set forth below.
Customer Content: Customer shall provide to Tapioca Mobile multimedia source files (including but not limited to video, images and audio) (the “Customer Content”) in a format acceptable to Tapioca Mobile. Customer understands and agrees that requirements of advertisers, carriers, message aggregators and others restrict the type of mobile multimedia that may be distributed through the Tapioca Platform or in connection with certain advertising, and Tapioca Mobile may refuse to incorporate any Customer Content that, in Tapioca Mobile’s good faith determination, violate such requirements; provided, however, that Tapioca Mobile shall have no obligation to, or liability with respect to, the screening of any Customer Content.
Confidentiality: Each party agrees that all business, technical and financial information it obtains from the other party that is marked “Confidential” or “Proprietary,” is the confidential property of the disclosing party (“Proprietary Information” of the disclosing party). Except as expressly allowed herein or as required by law, regulation or court order, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party during the Term or for one (1) year thereafter. Each party will be deemed to have met its obligations hereunder if it treats the other party’s Proprietary Information with no less than a reasonable degree of confidentiality and at least the same degree of confidentiality it affords its own sensitive business information. Upon termination or expiration of this Agreement, or at the request of the disclosing party, the receiving party shall (at its option) return the Proprietary Information to the disclosing party, or destroy it and, upon the disclosing party’s request, certify that it has taken such action. The receiving party shall not be obligated under this Section 11 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.
Ownership: Customer shall own and retain all right, title, intellectual property, interest to and ownership of all content provided to Tapioca Mobile. Tapioca Mobile shall own and retain all right, title, intellectual property, interest to and ownership of the Tapioca Mobile's multimedia messaging platform, derivative works, and all copies thereof. Both parties agree that nothing contemplated in this email shall modify the ownership rights of either party stated herein.
Warranty: Each party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the laws of the state which it is organized; (ii) it has the power and authority to enter into this Agreement and to perform fully its obligations hereunder; (iii) it is under no contractual or other legal obligation that shall in any way interfere with its full, prompt and complete performance hereunder; (iv) the individual executing this Agreement on its behalf has the authority to do so; and (v) the obligations created by this Agreement, insofar as they purport to be binding on it, constitute legal, valid and binding obligations enforceable in accordance with their terms. Unless otherwise noted, Customer represents and warrants to Tapioca Mobile that Customer is the owner of or otherwise has all rights necessary to permit the use and distribution of the Customer Content contemplated under this Agreement; that each piece of Customer Content provided by Customer to be distributed is not unlawful, obscene, defamatory, libelous, or pornographic, or does not violate the rights (including intellectual property rights) of any third party; that any of the advertising and marketing/promotional materials provided by Customer will not be defamatory, will comply with all applicable Federal, state and local laws and regulations and shall not infringe or violate the right of any third party, or any person or entity including intellectual property rights, rights of publicity and privacy. Tapioca warrants that it has the full right, power and authority to make the grant of rights made hereunder; that any advertising and marketing/promotional materials provided by Tapioca will not be defamatory, will comply with all applicable Federal, state and local laws and regulations and shall not infringe or violate the right of any third party, or any person or entity including intellectual property rights, rights of publicity and privacy, and that Tapioca will remain in full compliance with all applicable material Federal, state and local laws and regulations in connection with distributing content through the Service.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TAPIOCA MOBILE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
Limitation of Liability: Neither party will be liable to the other party under any section or subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for any punitive, special, incidental or consequential damages or lost data. This section does not limit liability for bodily injury of a person.
Indemnification: Customer shall indemnify, defend and hold harmless Tapioca Mobile, and each of its parents, subsidiaries and affiliates and their respective directors, officers, employees, agents, successors, and assigns against any and all Liabilities paid or incurred by any of them in connection with claims by any third party to the extent that such Liabilities arise out of or relate to (i) any infringement or alleged infringement by the Customer Trademark or Customer Content; or (ii) Customer’s breach or alleged breach of any warranty, representation, covenant or agreement hereunder; provided that Customer is given prompt notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.
Miscellaneous: Each party shall be and act as an independent contractor and not as joint venturer, or agent of the other. Nothing contained herein shall be deemed to create a relationship of joint venture, principal and agent, or similar relationship between the parties and neither party shall hold itself out to the contrary. Nothing contained herein shall be deemed to allow either party to create or assume any obligations on behalf of the other party for any purpose whatsoever. Tapioca Mobile reserves the right to suspend service to users of individual carriers, in the event that a carrier (or its message aggregating agents) changes the fees which Tapioca Mobile or its aggregators are charged related to messaging or the delivery of messages. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns, and personal representatives. Neither party shall assign this Agreement in whole or part without the prior written consent of the other party except that either party may assign this Agreement in connection with a merger, reorganization or sale of all or substantially all of such party’s assets. This Agreement, including all appendices hereto, contains the entire understanding of the parties regarding its subject matter and supersedes any and all other agreements and understandings, whether oral or written, with respect to the subject matters covered herein. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. If any portion of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees. This Agreement may be executed in separate counterparts which, taken together, shall constitute one agreement. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Ambiguities, inconsistencies or conflicts in this Agreement will not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this Agreement is entered into and common practice in the industry.