Terms and Conditions

1. Definitions

Capitalized terms used in these Terms without being otherwise defined herein shall have the following meanings:

1. “Customer Content” means all content and/or any HTML links to such content to be provided by Customer or its authorized third parties for display on the Customer-specific Site and in emails and/or text messages from Vendor to Users during the Term, including without limitation contact information of Users.  By providing any Customer Content, Customer warrants and represents that it owns and/or controls the rights to provide and display such Customer Content as contemplated herein.
2. “Customer Specific Site” means, collectively, (i) the private website and (ii) any other web portal developed by Vendor or Customer, in each case for use by Users during the Term, that incorporates Vendor Technology and that has been developed or customized by Vendor specifically for Customer during the Term, and any Revisions and Derivative Works thereof.
3. “Derivative Works” means (i) any software, work product, improvement, modification, alteration, enhancement, new version, update, localization, upgrade, port, translation, design or documentation, in any medium, format or form whatsoever, that is derived in any manner, directly or indirectly, from the identified software or any part or aspect thereof, or that uses or incorporates such software or any part or aspect thereof; (ii) all derivative works of such software as defined in the Copyright Law of the United States, Title 17 U.S.C. §101 et seq., (iii) all materials and documentation related to the foregoing and (iv) all Intellectual Property Rights related to the foregoing.
4. “Intellectual Property Rights” means the worldwide intangible legal rights or interests evidenced by or embodied in (i) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, patent applications, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, industrial designs, registration or moral rights recognized by law, (iii) any trademarks, trade names, trade dress and associated goodwill, and (iv) any other proprietary technology or material in which similar rights exist.
5. “Interactive User Data” means any User interactions that pass utilizing the Vendor System.
6. “Project” shall mean the specific deployment of Vendor Technology in a project deployed by Vendor for Customer, as set forth in the Purchase Order to which these Terms are attached.
7. “Revision” means any correction, modification, improvement, enhancement, update, upgrade, new version, or new release of the Vendor Technology that is developed and made available by Vendor in its sole discretion.  All Revisions automatically become part of the Vendor Technology.
8. “Service(s)” means the specific service(s) provided by either of Vendor or Customer as described in Section 3 hereof.
9. “User” means any person designated by Customer to be granted access to the Vendor System as permitted by these Terms.
10. “Vendor” shall mean H Engage, Inc., d/b/a “Airbo”.
11. “Vendor Content” means all content, including, but not limited to, images or other audio-visual materials, which are created by or licensed to Vendor by third parties and/or any HTML links to such content owned and/or controlled by Vendor, which Vendor may make available to Customer for display on the Customer-specific Site and in emails and/or text messages from Vendor on behalf of Customer to Users during the Term.
12. “Vendor System” means that proprietary system that Vendor owned and controlled in whole by Vendor, which such Vendor System displays content from Vendor (including without limitation any game, other interactive social network, or other feature with Users) deployed on the Customer-specific Site, into which Vendor’s Technology is embedded.
13. “Vendor’s Technology” means the Vendor System and any Derivative Works thereof and Revisions thereto.

2. No Assignment of Rights In or To Vendor’s Technology

Notwithstanding any right granted to Customer to engage in any authorized use of the Vendor’s Technology, solely as set forth herein, no right, title or interest in or to any portion of the Vendor’s Technology is granted to Customer in connection with the Project.

3. Limited License for Vendor Content

Vendor hereby grants Customer a limited license during the Term to display Vendor Content solely in connection with the Customer-specific Site and in emails/and or text messages created to be sent to Users, as contemplated by the parties hereunder.  Vendor represents and warrants that it owns or has all rights necessary in and to the Vendor Content, and that to its knowledge, none of the Vendor Content infringes the rights of any third party.  Customer acknowledges and agrees that, except for the representations expressly set forth herein in the immediately preceding sentence, Vendor makes no representations or warranties to Customer, any User, or any third party including, but not limited to, as to the accuracy or fitness for a particular purpose with respect to the information contained in any Vendor Content (the “Information”), the permitted use of any of the Information contained in any Vendor Content or the laws, regulations and rules applicable to the subject matter of the Information or the compliance of the Information therewith, and any Vendor Content is used on an "as is" basis.  Neither customer, nor any User or any other third party, shall have any recourse against Vendor in the event of any errors in the Information or omissions therefrom.  Customer’s use of the Information is based solely on Customer’s own independent investigation and inspection of the Information and not in reliance on any information provided by Vendor, except for the representations expressly set forth herein.  Customer expressly disclaims any intent to rely on any Information or materials related thereto provided by Vendor and agrees that, except for the representations expressly set forth herein, Customer shall rely on its own independently developed and verified information in connection with any use of the Vendor Content as permitted hereunder.    

4. Services

1. Hosting Services. The Vendor System will be hosted by Vendor.  Vendor shall provide access and permission to Customer in order that Customer can provide access and permit Users to use the Vendor System, as contemplated herein and in Vendor’s standard Terms of Use that will be a part of the Customer Specific Site.

1. Vendor Support Services.  During the Term (as defined in Section 11 below), Vendor shall provide reasonable support services, which shall include Vendor’s use of its commercially reasonable efforts to (i) replicate and correct errors in the then-current version of the Vendor System, and (ii) provide Users with reasonable support for the Vendor System. Vendor shall use commercially reasonable efforts to diagnose and correct documented problems reported by Users in using the Vendor System. However, under no circumstances does Vendor warrant or represent that all problems can or will be corrected or that the Vendor Technology will be error free. Any on-site support services that Customer may request are not a part of these Terms or the Purchase Order to which these Terms are attached, and must be agreed upon by both parties.
2. Customer Content.  Customer shall provide any Customer Content that it desires used in the Project, as mutually agreed by the parties.  Customer represents and warrants that it owns or has all rights necessary for the intended use of the Customer Content, and that none of the Customer Content infringes the rights of any third party. Customer hereby grants Vendor a limited license to (i) embed game mechanics in Customer Content, as contemplated by the parties, and (ii) disseminate Customer Content to the Users via email, text message, and/or on the Customer Specific Site  

5. Payment

1. Fees and Payment Terms. Customer shall pay all fees according to the prices and terms and at such intervals as set forth in the Purchase Order. All payments shall be made in the United States in U.S. dollars. The term shall automatically renew for subsequent periods of the same length as the initial term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current term.
2. Late Payments. Any payment due to Vendor not received by the due date shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.  If Customer is delinquent in its payments, Vendor may, upon written notice, require assurances to secure Customer’s payment obligations hereunder, including without limitation suspending the provision of some or all of the Services to Customer.  
3. Taxes.  All fees charged hereunder are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of the Vendor System, Services and/or any other obligation owing from one party to the other hereunder.  Except for taxes based on income, each party shall be responsible for and will pay in full all taxes and similar fees imposed on transactions in which it receives products or services.  

6. Confidential Information

1. Nondisclosure of Confidential Information. Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential.  Confidential Information will also include, but not be limited to, Vendor Technology, Vendor Content, and the terms and conditions contained herein.  Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms, nor disclose to any third party (except as required by applicable law, legal process or government regulation or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Customer shall not, directly or indirectly, reverse engineer, decompile or disassemble any Vendor Technology or otherwise attempt to derive source code or other trade secrets from Vendor.
2. Exceptions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of these Terms by the receiving party; or (iv) is independently developed by the receiving party by personnel without access to the Confidential Information.  The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.  

7. Intellectual Property

1. General Ownership.  Neither these Terms nor a Purchase Order shall serve to transfer (i) from Vendor to Customer the Vendor’s Technology, any other technology, or the Vendor Content, and all right, title and interest in and to the Vendor’s Technology, any other technology, and the Vendor Content (to the extent of Vendor’s interest therein) will remain solely with Vendor (as applicable), or (ii) from Customer to Vendor any Customer Content, and all right, title and interest in and to the Customer Content will remain solely with Customer.
2. Interactive User Data. Vendor shall have the right to all aggregate information about the use of the Vendor Technology, Vendor Content and Services, including without limitation the aggregate number of Users and data regarding use of the Vendor System by Users. Vendor shall provide Customer with a copy of any aggregate analytic information it compiles regarding the Project. In no event will either Party be entitled to disclose such information in a manner from which the individual identity or information of any User may become known. Neither party shall send unsolicited commercial messages or communications in any form (“SPAM”) to any User who has requested not to receive such messages.  
3. General Skills and Knowledge.  Notwithstanding anything to the contrary in these Terms, Vendor will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge not comprising Confidential Information of Customer acquired during the course of providing the Services, including without limitation information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Vendor.  To the extent proprietary or confidential, all such information developed during the Term shall be deemed owned by Vendor.‍

8. Warranties

The Vendor’s Technology, the Vendor Content, and the Services are provided on an "AS IS" basis, and Customer's use of the Vendor System, Vendor Content, and the Services on behalf of its Users are at its and their own risk.  VENDOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VENDOR DOES NOT WARRANT THAT THE VENDOR SYSTEM, VENDOR CONTENT, OR SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE VENDOR SYSTEM, VENDOR CONTENT, OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.  No employee, agent, dealer, or reseller is authorized to make any warranty on Vendor’s behalf.

9. Limitations of Liability

1. General.  Vendor’s liability to Customer for any cause, regardless of the form of legal action, whether in contract or in tort, including without limitation negligence, shall in no event exceed the total amount paid by Customer to Vendor pursuant to the Purchase Order and these Terms.
2. Consequential Damages Waiver.  IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

10. Indemnification

1. General Indemnification.  Each party hereto, as applicable, shall defend, indemnify and hold the other party and its stockholders, directors, officers, employees, agents and representatives (individually and collectively, the “Indemnified Party”) harmless from and against any and all disputes, demands, claims, actions, proceedings or suits (each, a “Claim”) brought by any third party against any Indemnified Party in connection with the Vendor Platform or any Vendor Content or Customer Content, as applicable, including without limitation any Claim alleging is defamatory or infringes a right of publicity, privacy or proprietary rights of any third party or violates any applicable laws, rules, or regulations; and will pay any costs and expenses (including without limitation reasonable attorneys’ fees) incurred by the Indemnified Party prior to the time at which such Indemnified Party is required to give written notice of such Claim as provided below, and all costs, settlements, or judgments finally awarded (collectively, “Damages”) related thereto.
2. Infringement Indemnification.  If Customer's use of any part of the Vendor’s Technology or Vendor Content is prohibited or threatened to be prohibited, or if Vendor reasonably believes that there is a likelihood of a claim of infringement, Vendor may, at its option and expense, (i) procure for Customer the right to continue to use such Vendor’s Technology or Vendor Content, (ii) modify or replace such Vendor’s Technology or Vendor Content so as to render the same non-infringing while providing substantially equivalent functionality, or if neither (i) nor (ii) are practicable, (iii) terminate Customer's rights under these Terms with respect to such Vendor’s Technology or Vendor Content subject to such Claim. Except as set forth in this Section 10(b), Vendor shall have no obligation to Customer with respect to any infringement claim.
3. Notice.  Each party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice from the other party of the existence of any Claim; (ii) being able to, at its option, control the defense or settlement of any such Claim; (iii) permitting the indemnified party to participate in the defense of any Claim, at the indemnified party’s sole expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof.

11. Term

1. Term.  The term of the Purchase Order and these Terms shall be as set forth in the Purchase Order (the “Term”).
2. Early Termination.  Either party may terminate these Terms if:  (i) the other party breaches any material term or condition of these Terms and fails to cure such breach within five (5) business days after receipt of written notice of the same; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
3. Effect of Termination.  Upon the effective date of the termination or expiration of these Terms:

• Vendor shall immediately cease providing the Service(s);
• any and all rights in and to the Vendor’s Technology an any Vendor Content shall immediately terminate;
• any and all payment obligations of Customer under these Terms incurred through the date of termination or expiration will immediately become due and payable; and
• within thirty (30) days after such termination or expiration, each party will return or destroy all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal record keeping requirement.

d. Survival. The following provisions will survive any expiration or termination of the Agreement:  Sections 1, 5 (as to payments owed but not yet paid), and 6 through 13.

12. Dispute Resolution

1. Mandatory Procedures. The parties agree that any dispute shall be settled by binding arbitration conducted in accordance with the procedural rules set forth in the JAMS/ENDISPUTE Streamlined Arbitration Rules & Procedures, and a corresponding judgment may be entered in a court of competent jurisdiction.
2. Equitable Remedies.  Although the procedures specified in this Section 12 are the sole and exclusive procedures for the resolution of disputes arising out of or relating to these Terms, either party may seek a preliminary injunction or other provisional equitable relief if, in its reasonable judgment, such action is necessary to avoid irreparable harm to itself or to preserve its rights under these Terms.

13. Miscellaneous Provisions

1. Purchase Orders; Conflicts.  A Purchase Order shall not create an obligation on the part of Vendor unless and until it is accepted by Vendor. These Terms shall govern over any conflicting term of a Purchase Order, unless the specific term in conflict is agreed to by Vendor in writing.
2. No Third Party Beneficiaries.  Vendor and Customer agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms, including without limitation any User.
3. Governing Law.  These Terms shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California without regard to principles of conflicts of law, and the parties hereto specifically exclude these Terms from any application of the United Nations Convention on the International Sale of Goods.
4. Severability; Waiver.  In the event any provision of these Terms is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of these Terms will remain in full force and effect.  The waiver of any breach or default of these Terms will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
5. Assignment. Neither party may assign its rights or delegate its duties under these Terms either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void, provided that either party may assign its rights and obligations hereunder (i) to any controlled subsidiary, (ii) to any entity that is the survivor of a merger of such party with or into such other entity, or (iii) to any acquirer of all or substantially all of the stock or assets of such party. These Terms will bind and inure to the benefit of each party's successors and permitted assigns.
6. Notice.  All notices required or permitted hereunder shall be in writing and shall, except as otherwise permitted herein, be sent by (i) personal delivery, (ii) first class certified or registered mail, postage prepaid, (iii) a reputable nationwide overnight courier service prepaid, or (iv) facsimile with confirmed answerback.  Notices shall be effective upon the business day of receipt.  No change of address shall be binding upon the other party hereto until written notice thereof is received by such party at the address first set forth above.
7. Relationship of Parties.  Vendor and Customer are independent contractors and neither any Purchase Order nor these Terms will establish any relationship of partnership, joint venture, employment, franchise or agency between Vendor and Customer.  Neither Vendor nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
8. Entire Agreement.  These Terms and each Purchase Order constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof and thereof, respectively, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
9. Amendments; Waivers.  These Terms may be amended, and any provision herein waived, only by a written document signed by authorized representatives of Vendor and Customer.