ADDITIONAL USER LICENSE AGREEMENT
Hookit has developed and owns various algorithms designed to track and value sponsorship by analyzing data (the “Algorithm”), and provides certain services related to such Algorithm (the “Services”). Information and data generated by the Algorithm are made available to user via a portal on Hookit’s website (the “Dashboard”) and/or in tangible Reports (as defined below). By accepting these terms, or by logging on to the Dashboard, User (anyone accessing the Dashboard through electronic means) is granted a License to access and use the Dashboard subject to the following terms and conditions.
- License
- 1.1 License Grant. Subject to and conditioned on User’s compliance with the terms and conditions of this License, Hookit hereby grants to User a limited, restricted, revocable, non-exclusive, non-transferable, non-sublicensable license, solely for the purpose of evaluating User’s sponsorship activities, (the “License”) to: (i) access and use the Dashboard; and (ii) use any report, material, data, or documentation developed through the Dashboard solely for User’s internal business purposes. (“Reports”).
- 1.2. Restrictions. User shall not and shall not permit any unauthorized individual to, access or use the Dashboard except as expressly permitted by this License. User shall not access the Dashboard by any means other than by use of User’s own then-valid access credentials, and shall not damage, interfere with or otherwise harm in any manner the Dashboard or Hookit’s provision of services to any third party, in whole or in part. User agrees not to access or use the Dashboard or Reports for purposes of competitive analysis or development of a competing software or product or for any purpose other than that for which it was intended. User shall not at any time, attempt, directly or indirectly, to allow any third party to attempt to (i) copy, modify, or create derivative works of the software, Reports, Services, Dashboard or Algorithm, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the software, Reports, Services, Dashboard or Algorithm; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the software, Reports, Services, Dashboard or Algorithm, in whole or in part; (iv) remove any proprietary notices from the software, Reports, Services, Dashboard or Algorithm; (v) use the software, Reports, Services, Dashboard or Algorithm in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the software, Reports, Services, Dashboard or Algorithm to transmit or display any false, inaccurate, or unlawful information; or (vii) violate the terms and conditions of this License or any terms and conditions posted on the software, Reports, Services, Dashboard or Algorithm.
- 1.3. Access to the Dashboard; Suspension. Hookit shall make the software, Reports, Services, Algorithm, and Dashboard accessible to User through a website. Any registration information User provides to Hookit must be accurate, current and complete. Credentials issued to access or use the software, Reports, Services, Algorithm, and Dashboard cannot be shared or used by any person or entity except for User. Hookit may immediately suspend User’s account and access to the software, Reports, Services, Algorithm, and Dashboard if User violates, or Hookit reasonably suspects that User has violated any terms of this License. Upon the termination or expiration of this License, User’s access to the software, Reports, Services, Algorithm, and Dashboard shall be terminated with immediate effect.
- Ownership
- 2.1. Dashboard and Reports. Except for the limited License granted in Section 1.1, the Parties acknowledge and agree that, as between the Parties, Hookit shall own all right, title and interest in and to the software, Services, Algorithm, Dashboard, and Reports, any improvements, modifications, enhancements or derivative works thereof, and all intellectual property rights therein. User agrees to and does hereby assign to Hookit all right, title and interest in and to any improvements, modifications, enhancements or derivative works of the software, Services, Algorithm, Dashboard, and Reports, developed, conceived or created by or on behalf of User, alone or jointly with others, including all intellectual property rights therein. Hookit is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in any such improvements, modifications, enhancements or derivative works thereof, for any purpose whatsoever, although Hookit is not required to use any such any improvements, modifications, enhancements or derivative works thereof.
- 2.2. Background Intellectual Property. Except as expressly set forth herein, the Parties acknowledge and agree that each Party shall retain all right, title, and interest in and to all of its background intellectual property, including all inventions, software, algorithms, methodologies, data, information and works of authorship, developed or acquired by such Party (alone or jointly with others) outside of the scope of this License.
- 2.3. No Other Rights. Except for the limited License granted in Section 1.1, nothing in this License shall be construed as transferring or granting any express or implied right, title or interest of any kind, by License or otherwise, to User. Nothing in this License grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to the Hookit intellectual property, including but not limited to the software, Reports, Services, Dashboard or Algorithm.
- Data
- 3.1. Hookit Data. As between the Parties, Hookit shall own any and all data, that is gathered, collected, compiled, or analyzed by Hookit, including any metadata accessed on third party websites, or otherwise learned, gathered, collected, compiled or analyzed or used by Hookit under this License (“Hookit Data”).
- 3.2. Statistical Information. Hookit may create statistical reports relating to the software, Reports, Services, Dashboard or Algorithm utilizing transaction data, so long as such reports contain only anonymous data that does not identify User or any specific transaction data, and such reports may be reported publicly. Hookit may, from time to time, offer benchmarking programs to facilitate deeper analysis into commercial trends for companies wishing to participate. If applicable, Hookit will use commercially reasonable efforts to operate benchmarking programs according to standards that protect the confidentiality of each User’s information.
- Confidentiality
- 4.2. Confidential Information. “Confidential Information” means any and all information disclosed by or on behalf of one Party (“Disclosing Party”) to the other Party (“Receiving Party”) under this License that is either marked as confidential or reasonable understood to be confidential. “Confidential Information” shall not include any information that: (i) is already known to the Receiving Party prior to its first disclosure to the Receiving Party; (ii) is independently developed by or for the Receiving Party without any use of the Confidential Information of the Disclosing Party; (iii) is disclosed to the Receiving Party without any obligation of confidentiality from a third party that, to the Receiving Party’s knowledge, has the right to disclose such information without restriction; or (iv) becomes publicly available through no fault of the Receiving Party. “Hookit Confidential Information” shall include, without limitation, the software, Services, Dashboard, Algorithm and Reports (and material portions thereof), any modifications to or derivative works of the software, Services, Dashboard, Algorithm and Reports, business plans, specifications, forecasts, projections, analyses, employee, client, User and vendor information, software (including but not limited to documentation and code), logistics and sales processes, and other information relating to the business or matters of Hookit or its affiliates, suppliers, Users or other business partners.
- 4.3. Protection and Use. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person other than its employees and authorized agents (to the extent applicable) who need to know such information and solely to the extent necessary to fulfill any obligations hereunder, and who shall be bound in a written agreement by obligations of confidentiality at least as protective as those set forth in this License. The Receiving Party shall maintain the confidentiality of the Confidential Information of the Disclosing Party, including but not limited to exercising the same degree of care the Receiving Party exercises with its own confidential or proprietary information of a similar nature, but in no event less than a commercially reasonable degree of care, to prevent its unauthorized disclosure or use. The Receiving Party shall be responsible and liable for any unauthorized disclosure or use of Confidential Information of the Disclosing Party, or any breach of this License, by its employees and authorized agents (to the extent applicable). The Receiving Party shall immediately, upon discovery of any unauthorized disclosure or use of Confidential Information of the Disclosing Party, notify the Disclosing Party and take reasonable steps to prevent any further disclosure or unauthorized use. User shall use Hookit Confidential Information solely as expressly permitted herein.
- 4.4. Return or Destruction. Except for the Reports, which Users shall retain the right to use solely for internal business purposes after the termination or expiration of this License, upon termination of this License or at the Disclosing Party’s request, the Receiving Party shall cease all use of Confidential Information of the Disclosing Party, and return or destroy (and upon the Disclosing Party’s request, certify the destruction thereof) all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, including but not limited to all written and electronic records (and copies thereof) that contain Confidential Information of the Disclosing Party and materials that are based on or use or incorporate any Confidential Information of the Disclosing Party.
- LIMITATION ON LIABILITY AND DISCLAIMER OF WARRANTIES
- 5.1. IN NO EVENT SHALL HOOKIT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR LOSS OF ANY KIND, OR FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER SIMILAR ECONOMIC DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE, REGARDLESS OF WHETHER SUCH DAMAGES OR LOSS ARE BASED ON BREACH OF WARRANTY OR CONTRACT, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT HOOKIT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. HOOKIT WILL NOT BE LIABLE FOR ANY DAMAGES RELATING TO ITS INABILITY TO MONITOR, TRACK, COLLECT, OR OTHERWISE OBTAIN DATA FROM ANY SOCIAL MEDIA PLATFORM DUE TO RESTRICTIONS IMPOSED BY THE PLATFORM. IN NO EVENT SHALL HOOKIT’S AGGREGATE LIABILITY EXCEED ONE HUNDRED DOLLARS ($100.00).
- 5.2. THE SOFTWARE, SERVICES, DASHBOARD, ALGORITHM, REPORTS AND ALL OTHER HOOKIT INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND HOOKIT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HOOKIT MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, SERVICES, DASHBOARD, ALGORITHM, REPORTS AND ALL OTHER HOOKIT INTELLECTUAL PROPERTY OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Term and Termination
- 6.1. Term. The License granted by these terms is being provided as an accommodation by Hookit, and may be revoked at any time in Hookit’s sole discretion, without liability and for any reason. Upon revocation or termination of this License, Sections 1.2, 2 (Ownership), 3 (Data), 4 (Confidentiality), 5 (Limitation on Liability), and 7 (General Provisions) shall survive the termination of this License.
- General Provisions
- 7.1. Injunctive Relief. The provisions of Sections 1, 2, 3 and 4 of this License may relate to unique and valuable assets of Hookit. Breach or threatened breach of these Sections 1, 2, 3 and 4 may result in irreparable harm to Hookit and remedies at law for such breach or threatened breach will be inadequate. In the event of a breach or threatened breach of Sections 1, 2, 3, and 4, Hookit shall be entitled to seek specific performance and/or injunctive relief, without any requirement to post a bond or other security. The remedies set forth in this Section 7.1 shall not be deemed to be the exclusive remedy for any such contravention of the terms this License, but shall be in addition to all other remedies available at law or equity.
- 7.2. Assignment. Hookit may assign this License, without the prior written consent or notice to User. User may not assign its rights or obligations under this License without the written consent of Hookit, which consent may be withheld in Hookit’s sole discretion.
- 7.3. Governing Law; Dispute Resolution. This License shall be governed by the laws of the State of California. In the event a dispute arises between the Parties under this License, the Parties hereby agree to binding arbitration, which shall be conducted in San Diego, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
- 7.4. No Waiver. The failure Hookit to enforce any of the provisions in this License shall not be construed to be a waiver of the right of such Party to enforce such provisions or any other provisions.
- 7.5. Independent Contractors. This License will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
- 7.6. Force Majeure. Hookit shall not be liable for any delay or failure to perform its obligations due to circumstances beyond Hookit’s control, such circumstances to include without limitation natural disasters, pandemic, epidemic, terrorism, labor disputes, war, declaration of governments, transportation delays, computer and/or network failures, acts of civil or military authorities, interruptions in third-party telecommunications or internet equipment or service, or misuse of the software, Reports, Services, Dashboard or Algorithm by the User.
- 7.7. Severability. If any provision of this License is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this License or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this License so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated.
- 7.8. Construction. The Parties agree that the terms of this License result from negotiations between them. This License will not be construed in favor of or against either Party by reason of authorship.
- 7.9. Entire Agreement and Amendment. This License, including its recitals, sets forth the entire agreement of the Parties with respect to the subject matter of this License and supersedes all prior or contemporaneous writings, negotiations, discussions, representations and warranties, both written and oral, with respect to the subject matter hereof. No terms and conditions from any User purchase order, invoice or other form shall be considered part of the License. Neither Party has relied upon any such prior or contemporaneous communications. Except as set forth in this Section 7.10, this License may not be modified except (i) by authorized representatives of each Party and (ii) in a written contract signed or digitally accepted by both Parties. Notwithstanding anything to the contrary contained herein, Hookit reserves the right, in its sole discretion to make any changes to the License, the software, Reports, Services, Dashboard or Algorithm, or associated services that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of the software, Reports, Services, Dashboard or Algorithm to its customers, (ii) the competitive strength of or market for the software, Reports, Services, Dashboard or Algorithm, or (iii) the software, Reports, Services, Dashboard or Algorithm cost efficiency or performance; or (b) to comply with applicable laws or regulations. Notwithstanding anything to the contrary contained herein, Hookit may modify or amend this License at any time and will post the then current license agreement on https://hookitsupport.zendesk.com/hc/en-us/articles/4424522050324. Changes will not apply retroactively and will become effective immediately. If you don’t agree to any modified or amended terms in the License, you must stop using the software, Reports, Services, Dashboard or Algorithm. Your continued use of the software, Reports, Services, Dashboard or Algorithm after the effective date of any changes constitutes your agreement to follow and be bound by such changes.
- 7.10. Export Regulation. The software, Reports, Services, Dashboard or Algorithm utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. User shall not, directly or indirectly, export, re-export, or release the software, Reports, Services, Dashboard or Algorithm or the underlying software or technology to, or make the software, Reports, Services, Dashboard or Algorithm or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making software, Reports, Services, Dashboard or Algorithm Subscription or the underlying software or technology available outside the US.