This SUBSCRIPTION Agreement (“Agreement”) is made and entered into as of 11 August 2022 (“Effective Date”), by and between VAULTED Media LLC. (“VAULTED”) and Customer Name: Urban Decay (“Customer”). VAULTED and Customer are each referred to herein as a “Party” and are collectively referred to herein as the “Parties.” In consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
Capitalized terms used in this Agreement shall have their meanings specified below or elsewhere in this Agreement.
- “Customer Marks” means trademarks, service marks, or trade names that Customer may designate from time-to-time.
- “Confidential Information” means any information, whether oral, written, electronic, or in any other format, and whether technical or business in nature, regarding this Agreement, VAULTED’s products or business, including the Subscription Service, information regarding a Party’s products, services, software, intellectual property, pricing, marketing and business plans, other information not generally known to the public and any other information received under circumstances reasonably interpreted as imposing an obligation of confidentiality; provided that, “Confidential Information” shall not include any of such information which: (a) was publicly available at the time of disclosure by the disclosing Party; (b) became publicly available after disclosure through no fault of the receiving Party; (c) was known to the receiving Party prior to disclosure by the disclosing Party; or (d) was rightfully acquired by the receiving Party after disclosure by the disclosing Party from a third party who was lawfully in possession of the information and was under no legal duty to the disclosing Party to maintain the confidentiality of the information.
- “Days” means calendar days.
- “Documentation” means the documents, agreements, user manuals and any technical publications and specifications, as applicable, made generally available by VAULTED to Customers relating to the operation and use of the Subscription Service.
- “End Users” mean Customer’s employees who are authorized to use the Subscription Service.
- “Intellectual Property Rights” means all intellectual property rights, howsoever arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, and any applications for the protection or registration of such rights and all renewals, and extensions thereof throughout the world.
- “Order Form” means the order form set forth in Exhibit C (Order Form).
- “Subscription Service” means the platform described in Exhibit A (Fees and Pricing) hosted by VAULTED or its agents and made generally available for remote access and use by Customer and Customer’s End Users under this Agreement.
SUBSCRIPTION SERVICE License and Restrictions
- License to Subscription Service. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, VAULTED hereby grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license, during the Term, to use the Subscription Service solely for Customer’s internal business purposes.
- Limitations on License. Customer shall not: (a) modify or make derivative works based on the Subscription Service; (b) use the Subscription Service other than as permitted under this Agreement; (c) remove any product identification or other notices contained in the Subscription Service; or (d) reverse engineer the Subscription Service for any reason or access the Subscription Service to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of the Subscription Service, or (iii) copy any ideas, features, functions, or graphics of the Subscription Service.
- Service Levels. The service levels applicable to the Subscription Service are set forth in Exhibit B (Service Level Agreement). Customer’s sole and exclusive remedy, and VAULTED’s sole and exclusive obligation, for a breach of any terms contained in Exhibit B (Service Level Agreement) will be for VAULTED to provide a credit as provided therein for the month; provided that Customer notifies VAULTED of such breach within thirty (30) Days of the end of the month in which the service level failure occurred.
- Protection of Proprietary Rights. Customer acknowledges and agrees that the Subscription Service is a commercially valuable asset of VAULTED, the development of which required the investment of substantial time, effort, and cost by VAULTED. Customer further acknowledges and agrees that the Subscription Service contains trade secrets of VAULTED and that it is VAULTED’s Confidential Information and is proprietary to VAULTED. Accordingly, Customer hereby agrees that it and its End Users will use the highest degree of care to maintain the confidentiality of the Subscription Service. Customer and its End Users shall comply with the obligations in this Section 2 (Subscription Service License and Restrictions) including (and without limiting the generality of the foregoing) limiting the use of and access to the Subscription Service only to Customer’s End Users.
- Unauthorized Access. Customer shall promptly notify VAULTED of any unauthorized use, copying, or disclosure of the Subscription Service of which it becomes aware and further agrees to take such commercially reasonable measures necessary to end and prevent any such further use, copying, and disclosure.
- Breach of License. VAULTED, in its sole and exclusive discretion, may immediately terminate this Agreement in the event Customer, or any of Customer’s End Users, violate the license grants made herein or any provision of this Section 2 (Subscription Service License and Restrictions). Each Party acknowledges and agrees that any breach of license grants made herein or any provision of this Section 2 (Subscription Service License and Restrictions) by Customer or its End Users, shall cause immediate and irreparable injury to VAULTED, and in the event of such breach, VAULTED shall be entitled to seek and obtain injunctive relief, without bond or other security, and all other remedies available at law and in equity.
- Custom Development. If a Customer requests custom development work or customizations of the Subscription Services (“Custom Development Services”), Customer shall notify VAULTED in writing. If, in VAULTED’s sole and exclusive discretion, VAULTED agrees to provide the Custom Development Services, such Custom Development Services shall be billed to Customer at VAULTED’s then-current rates for development services. Any Custom Development Services shall be performed pursuant to a separate agreement between VAULTED and the Customer.
- Professional Services. If a Customer requests project management, sales support, short code provisioning assistance, integration advice, best practice advice or other consultancy services related to the adoption or deployment of the Subscription Services (“Professional Services”), Customer shall notify VAULTED in writing. If, in VAULTED’s sole and exclusive discretion, VAULTED agrees to provide the Professional Services, such Professional Services shall be billed to Customer at VAULTED’s then-current hourly rates for the staff resources required at the time. Additionally, should Customer request this, VAULTED, at its discretion, will allocate Professional Services resources to Customer on an ongoing basis in return for a monthly retainer to be separately agreed.
- Data Licenses. All data processed through the Subscription Services by Customer remains the sole property of Customer and its customers (as applicable) (“Customer Data”). Customer grants VAULTED the right to use the Customer Data as necessary to perform its obligations under this Agreement. Notwithstanding the foregoing, VAULTED may use Customer Data in an aggregate form to analyze use of the Subscription Services, improve the Subscription Services and identify trends related to the Subscription Services. Customer shall ensure it has obtained all rights, consents and authorizations necessary to license the Customer Data to VAULTED as set forth herein.
- Security. VAULTED will implement reasonable physical, administrative and technical security measures for the Subscription Services designed to: (a) protect the security and confidentiality of the Customer Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Subscription Services and Customer Data, and (c) protect against unauthorized use of or access to the Subscription Services and Customer Data. VAULTED shall also establish and maintain network and internet security procedures, protocols, security gateways and firewalls with respect to the Subscription Services and the Customer Data stored therein.
- License to Customer Trademarks. Customer hereby grants to VAULTED a limited, non-transferable, non-sublicensable, non-exclusive license, during the Term, to use, reproduce, display, and distribute the Customer Marks solely in connection with and solely as necessary to provide the Subscription Service to Customer and its End Users, subject to the terms of this Agreement. VAULTED shall comply with Customer’s then-current policies regarding the use of Customer’s Marks. VAULTED acknowledges and agrees that all Intellectual Property Rights in the Customer Marks belong to and shall continue to belong to Customer (or its licensors or other third party owners), and VAULTED shall have no rights in or to the Customer Marks other than as specifically set forth in this Agreement.
FEES AND Payment
- Subscription Services Fees. The pricing and fees for the Subscription Services are forth in Exhibit A (Fees and Pricing) (the “Fees”) and will be invoiced in accordance with the provisions set forth therein. VAULTED reserves the right to change the Fees upon thirty (30) Days prior written notice to Customer.
- Payment Terms. Payments will be made to VAULTED Media LLC. Bank: Citibank 185 Madison Avenue NY NY 10016 Account: 6782404145 ABA Routing 021000089. All amounts to be paid by Customer hereunder shall be due and payable thirty (30) Days after Customer’s receipt of the invoice therefor. All payments not made by Customer when due shall be subject to late charges of the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. Any failure to pay will constitute a material breach of this Agreement by Customer.
- Taxes. Customer shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by VAULTED’s net income, unless Customer is exempt from the payment of such taxes and provides VAULTED with sufficient evidence of such exemption.
- Suspension. Without limiting VAULTED’s termination rights, VAULTED shall have the right to suspend the Subscription Services in the event Customer fails to pay any Fees when due.
- Confidentiality Obligations. The Parties agree to hold each other’s Confidential Information in strict confidence. The Parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than as specified in this Agreement. Each Party agrees to take all reasonable steps to ensure that Confidential Information of either Party is not disclosed or distributed by its employees, agents, or consultants in violation of the provisions of this Agreement. Each Party’s Confidential Information shall remain the sole and exclusive property of that Party. Each Party acknowledges that any use or disclosure of the other Party’s Confidential Information other than as specifically provided for in this Agreement may result in irreparable injury and damage to the non-using or non-disclosing party. Accordingly, each Party hereby agrees that, in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-using or non-disclosing Party may be entitled to equitable relief as granted by any appropriate judicial body.
- Duration. The obligations under this Section 4 (Confidentiality) shall terminate five (5) years following expiration or termination of this Agreement (except with regard to trade secrets, which shall remain confidential for so long as the information remains protected as a trade secret).
- Feedback. Customer and/or its End Users may provide suggestions, comments or other feedback to VAULTED with respect to the products and services, including the Subscription Services. Feedback is voluntary and VAULTED is not required to hold it in confidence. Feedback may be used by VAULTED for any purpose without obligation of any kind. Nothing contained herein shall preclude either Party from developing any products or services or enhancing any existing products or services, including but not limited to the products that are the subject of this Agreement, provided any such developments or enhancements are not based on or derived from the other party’s intellectual property or Confidential Information.
Term and Termination
- The initial term of this Agreement shall commence on the Effective Date and shall continue for three (3) years. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive year terms of identical length, (each a “Renewal Term”) unless either Party provides notice of termination or non-renewal no less than ninety (90) Days prior to expiration of the then-current term. The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.”
- Termination for Breach. Either Party may terminate this Agreement with thirty (30) Days prior written notice if the other Party has failed to comply with any material term, condition, or obligation of this Agreement, and such Party subsequently has failed to remedy the default within thirty (30) Days after such notice by the non-defaulting Party.
- Termination for Insolvency. If VAULTED believes in good faith that Customer’s ability to make payments may be impaired, or if Customer fails to pay any invoice when due and does not make such payment within ten (10) Days after receipt of notice from VAULTED of such failure, then VAULTED may, in its sole discretion, either: (a) suspend the Subscription Services until such payment is made; or (b) terminate the Subscription Services. In either event, Customer shall remain liable to pay all Fees under this Agreement.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason, all sums owed to VAULTED by Customer will become immediately due and payable upon the effective date of termination, and each Party shall immediately cease use of all Confidential Information belonging to the other Party and shall irretrievably delete and/or remove such items from all computer hardware and storage media, including backups. Additionally, following termination of this Agreement, Customer shall immediately cease use of the Subscription Services.
- Notwithstanding any provisions contained in this Agreement to the contrary, in addition to any provisions that by their express terms survive expiration and termination of this Agreement, or by their nature may be reasonably inferred to have been intended to survive expiration and termination of this Agreement, the following provisions shall survive expiration and termination of this Agreement: 1 (Definitions), 2.4 (Protection of Proprietary Rights), 4 (Confidentiality), 5.4 (Effect of Termination), 5.5 (Survival), 7 (Indemnification), 8 (Limitation of Liability) and 9 (General).
- Limited Warranty. Each Party represents and warrants that (a) it has the authority to enter into this Agreement and to grant the rights and licenses provided herein, and that by entering into this Agreement such Party is not in violation of any previous agreement between such Party and any third party, and (b) it will comply with all laws and regulations applicable to the obligations assumed under this Agreement.
- No Other Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6 (WARRANTIES), VAULTED DOES NOT MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIPTION SERVICE (INCLUDING ANY WARRANTY AS TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE), NOR WITH RESPECT TO ANY OTHER MATTER SET FORTH IN THIS AGREEMENT.
- Mutual Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other Party (the “Indemnified Party”) from and against any and all causes of action, claims, damages, liabilities, losses, judgments, and costs (including reasonable attorneys’ fees and disbursements) (collectively, “Claims”) by third parties arising out of or relating to: (a) the Indemnifying Party’s gross negligence or willful misconduct; (b) any breach of this Agreement by the Indemnifying Party; (c) the Indemnifying Party’s use of any of the Indemnified Party’s Marks not in compliance with the terms hereof; (d) any third-party claims that any of the Indemnifying Party’s Marks infringes on any Intellectual Property Rights of such third party.
- Indemnification Procedure. The Parties’ indemnification obligations are conditioned upon: (a) the Indemnified Party promptly notifying the Indemnifying Party of any Claim for which indemnification is sought, provided, that any failure or delay to provide such notice shall not constitute a breach of this Agreement and shall not excuse the Indemnifying Party from its obligations under this Section 7 (Indemnification), except to the extent (if any) that the Indemnifying Party is prejudiced by such failure or delay; (b) the Indemnified Party cooperating with the Indemnifying Party in its defense or settlement of any such Claim; (c) the Indemnifying Party completely controlling the defense or settlement of any such Claim; and (d) the Indemnified Party using commercially reasonable efforts to mitigate the damages, if applicable. The Indemnified Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. The foregoing notwithstanding, the Indemnifying Party shall not finalize any settlement that prejudices or materially, adversely affects the Indemnified Party without the prior written consent of the Indemnified Party.
Limitation of Liability
- Disclaimer of Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES OR COSTS (INCLUDING LOST PROFITS, LOST REVENUES, LOST DATA, COSTS OF RECREATING LOST DATA, OR LOSS OF USE) RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF EITHER OR BOTH OF THEM KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
- Cap on Direct Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES AND ROYALTIES PAID BY CUSTOMER TO VAULTED IN THE TWELVE (12) FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
- NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE LIMITATIONS UPON THE TYPES AND AMOUNTS OF EACH PARTY’S LIABILITY, AND THE EXCLUSIONS OF CERTAIN TYPES OF DAMAGES, SET FORTH IN THIS SECTION 8 (LIMITATION OF LIABILITY), SHALL NOT APPLY TO THE FOLLOWING: (A) DAMAGES RESULTING FROM CUSTOMER’S BREACH OF SECTION 2 (LICENSE GRANTS AND RESTRICTIONS); (B) DAMAGES RESULTING FROM A BREACH OF SECTION 4 (CONFIDENTIALITY); OR (C) CLAIMS SUBJECT TO OR AMOUNTS PAYABLE PURSUANT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER.
- Compliance with Laws and Export. In connection with Customer’s access to and use of the Subscription Services, Customer is responsible for complying with all laws, regulations and policies of all relevant jurisdictions. Without limiting the foregoing, Customer agrees that it will not use the Subscription Services for any unlawful purpose, and you will not export, directly or indirectly, the Subscription Services to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be Customer’s responsibility to comply with such export laws, rules and regulations. Customer shall defend, indemnify and hold harmless VAULTED from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Subscription Services was accessed, used, exported, or otherwise shipped or transported by Customer in violation of applicable laws, rules, and regulations.
- Nature of Relationship. In entering this Agreement, Customer does so as an independent party and not as an agent, partner, or joint venturer of VAULTED. Customer does not have any right or authority, nor shall Customer hold itself out as having any right or authority, to assume, create, or enter into any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon, VAULTED.
- Press Release. Each Party will have the right to issue a press release about the relationship between the Parties with the other Party’s prior written approval (which shall not be unreasonably withheld or delayed).
- Compliance with Laws. The Parties shall comply with all applicable local, state, and federal laws and regulations, including all export laws and regulations of the United States.
- Construction. The section headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the construction or interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”
- Inapplicability of UCITA. THE PARTIES AGREE THAT NO PROVISION OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA) IS INTENDED TO APPLY TO THE INTERPRETATIONS OF THIS AGREEMENT, WHETHER OR NOT UCITA IS ENACTED IN THE STATE WHOSE LAW GOVERNS THIS AGREEMENT AS SET FORTH IN SECTION 9.6 OF THIS AGREEMENT.
- Governing Law; Venue; Severability. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of New York, without reference to conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with this Agreement, shall be in the state or federal courts, as applicable, located in New York, New York. In the event that one or more of the provisions herein shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforcement of the remaining provisions shall not be affected or impaired.
- Customer shall not assign this Agreement or any rights or obligations hereunder, without the express written consent of VAULTED. Any assignment or transfer in violation of the foregoing will be null and void. VAULTED reserves the right to assign this Agreement to any affiliate or any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of VAULTED. Subject to all of the terms and conditions hereof, this Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.
- Waiver. The failure to enforce or the waiver by either Party of one default or breach of the other Party shall not be considered to be a waiver of any subsequent default or breach.
- Notices. All notices required or permitted hereunder shall be in writing, delivered personally, by facsimile, by certified or registered mail, or by nationally recognized overnight courier (e.g., FedEx) at the Parties respective addresses set forth in the signature lines to this Agreement. All notices shall be deemed effective upon personal delivery; or on the business day following receipt by telephonic facsimile; or when received if sent by certified or registered mail or by overnight courier.
- Force Majeure. Except with regard to payment obligations, either Party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the Party, including, but not limited to, default of subcontractors or suppliers, failures of third party software, default of third party vendors, acts of God or of the public enemy, U.S. or foreign governmental actions, labor shortages or strikes, communications or utility interruption or failure, fire, flood, epidemic, and freight embargoes. However, to be excused from delay or failure to perform, the Party must act diligently to remedy the cause of the delay or failure.
- Remedy. The rights and remedies of the Parties will be cumulative (and not alternative). In the event of any litigation between the Parties relating to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees, expert witness fees, and court costs from the other Party.
- Entire Agreement. This Agreement, and each exhibit hereto, together constitute the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement shall be binding on either Party unless it is in writing and signed by both Parties. In the event of any conflict or inconsistency between this Agreement and any exhibit, the terms and conditions of this Agreement shall prevail.
- This Agreement may be executed in counterparts, each of which will be deemed an original and all of which taken together shall constitute one and the same Agreement.