Channel Metrics Software Licensing Agreement

This Channel Metrics License Agreement (this “Agreement”) is entered into effective as of (the “Effective Date”), by and between Wellesley Information Services, Inc. DBA Channel Metrics, a corporation based in Hampstead, NH (“Channel Metrics”) and (“Licensee”). Channel Metrics and Licensee are at times referred to herein individually as a “Party” and collectively as the “Parties”.

Recitals

1. Channel Metrics is the developer and owner of the Channel Metrics platform, proprietary software that provides integrated data management tools to membership communities and their clients.
2. Licensee is a supplier of goods and/or services and wishes to license the Software to third parties to support its business.
3.  The Parties desire that this Agreement govern the respective rights and responsibilities of the Parties with regard to the ownership, use, reproduction, modification, and security of the Software and related information.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Channel Metrics and Licensee agree as follows:

1. Definitions.

“Channel Metrics Content” means the licensed product(s) and data listed in herein including the editorial and graphical content and design of the Web pages served to End Users, and the Results Pages, instruction pages, frequently asked questions pages and any End User terms and guidelines. Channel Metrics Content excludes any Licensee Content and Data.

“Derivative Work” means a derivative work within the meaning of the Copyright Act of 1976 (as amended) including, without limitation, any modification, revision, port, translation, abridgment, condensation or expansion of the associated content or any form in which the associated content is recast, transferred, transformed or adapted, which, if prepared without the rights granted under this Agreement, would result in copyright infringement.

“Documentation” means any documentation or materials including, without limitation, reference, user, installation, systems administrator and technical guides/manuals relating to the installation and use of the Software.

“End User” means the client, Licensee or authorized third party utilizing the Software for its intended purpose.

“Improvements” means all corrections, updates, upgrades enhancements, releases, fixes, new versions or other improvements of, or modifications to, the Software, which Channel Metrics makes available to its customers.

“Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all Derivative Works thereof; (ii) trademark and trade name rights and similar rights;

(iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

“Licensee Content and Data” means (a) any and all of Licensee’s proprietary and confidential data used with the Services or Channel Metrics Content, (b) all data or other information received from End Users through Channel Metrics’ provision of the Service, (c) any Derivative Works, improvements or modifications thereof, (d) all materials in any tangible medium of expression, including the information in such materials, that Licensee provides to Channel Metrics, and (e) methods, processes, and techniques that Licensee provides to Channel Metrics.

“Services” means the services that Channel Metrics is to perform for Licensee under this Agreement as more fully set forth in Section 2 below.

“Software” means the web-based software application developed by and proprietary to Channel Metrics (commonly known as the Channel Metrics platform), including without limitation all Source Code, object code, copyright elements, trade secrets, know-how, and unique ideas and techniques embodied therein, and including all modifications, enhancements and customizations.

“Source Code” means fully documented human-readable source code form of the Software, including programmer’s notes and materials and documentation, sufficient to allow a reasonable skilled programmer to understand the design, logic, structure, functionality, operation and features and to use, operate, maintain, modify, support and diagnose errors

“Third-Party Intellectual Property” shall mean all materials subject to the Intellectual Property Rights of third parties and incorporated into the Services by Channel Metrics.

“Work Product” shall mean any and all deliverables, software in object code form including all Improvements, listed in any Statement of Work, and their associated Intellectual Property Rights developed, created, or discovered by Channel Metrics personnel. For avoidance of doubt, Work Product shall not include any Improvements, modifications or enhancements to the Software or Channel Metrics Content, but shall consist solely of enhancements and templates requested by Licensee and developed by Channel Metrics that are intended for the sole and exclusive use of Licensee and End Users.

2. Services.

1.             General. Channel Metrics will provide the hosted Channel Metrics Platform to Licensee. The Software is designed to allow Licensee to integrate multiple data collection systems and present a unified reporting interface to its clients.
2.             Services; Custom Deliverables. Channel Metrics will provide custom deliverables, only as set forth in the Statement of Work accompanying this agreement.
3.             Hosting. Channel Metrics will provide data transmission capacity (bandwidth), disk storage, server capacity and other hardware and software (including the Software and any Third-Party Intellectual Property) required to host the platform.
4.             Maintenance; Service Level Agreement. During the term of this Agreement, Channel Metrics will perform customary routine technical support and maintenance services at no additional cost to Licensee. Any additional support services, training or maintenance requested by Licensee, and for which there is an additional charge, will be at Channel Metrics’ then prevailing rates for such services. Additional terms and conditions regarding Channel Metrics support availability and issue resolution is set forth in the Service Level Agreement which can be supplied by Channel Metrics at the request of Licensee.

3. Fees.

The fees due and payable to Channel Metrics by Licensee are generally set forth below. For additional Services requested by Licensee, Channel Metrics will charge its regular rates for Services unless otherwise agreed in writing by Licensee and Channel Metrics. Unless otherwise set forth in this Agreement, all amounts invoiced by Channel Metrics and Licensee shall be due and payable sixty (60) days after the invoice date. All unpaid amounts due and owing beyond such due date shall accrue interest until paid at the lesser of (i) one percent (1%) per month, or (ii) the maximum rate allowed by applicable law. The fees provided for in this Agreement do not include sales, excise, value-added, or like taxes (collectively, “Sales Tax”). If Channel Metrics is required to pay any Sales Taxes, or any franchise, use, or like fee based on the Services, Software, or any other product or service provided under this Agreement or on the Licensee’s use of the Services or the Software, then such taxes or other fees shall be billed to and paid by Licensee. Channel Metrics shall timely pay all such Sales Tax to the applicable taxing authority.

Channel Metrics will issue Licensee quarterly invoices.

4. License.

1.             Grant of License. Channel Metrics hereby grants to Licensee a non-exclusive, irrevocable (except for non-payment or material breach of this Agreement by Licensee), non-transferable, worldwide license to use the Software in accordance with and during the term of this Agreement. The term of this license and any sublicense granted by Licensee shall expire simultaneously with the expiration of this Agreement. Except as expressly authorized by this Agreement, Licensee shall not, and shall not authorize others to, copy, translate, modify, create derivative works, or otherwise use the Software. Licensee shall not remove proprietary rights notices from the Software or any Documentation provided by Channel Metrics.
2.             Licensee Content and Data. Subject to the terms and conditions herein, Licensee grants Channel Metrics a limited, non-sublicensable, non-exclusive, non-transferable license to use the Licensee Content and Data solely as necessary for Channel Metrics to provide the Services for Licensee’s benefit and pursuant to Licensee’s instructions (which shall not be inconsistent with the terms of this Agreement). Such license shall expire upon the expiration of this Agreement.
3.             Sublicense. Licensee shall have the right to sublicense to its Clients, end users or third-party contractors with a Licensee business need to use the Software, with the right to use the Software under terms substantially equivalent to the terms of this Agreement. Channel Metrics and Licensee shall work cooperatively to establish the terms and conditions under which End Users shall have access to and utilize the Software and access the hosted website. Subject to the terms of this Agreement, including but not limited to this Section 4, Licensee’s agreements with each End User with respect to the Software shall be the sole responsibility of Licensee.
4.             No Reverse Engineering. Licensee shall not decompile, disassemble, decrypt, extract, unbundle, translate, or otherwise attempt, or permit or assist others in any attempt, to reverse engineer the Software, in whole or in part

5. Intellectual Property.

1.             Channel Metrics Ownership. Channel Metrics shall own all right, title and interest in the Software and the Channel Metrics Content and Licensee shall have no Intellectual Property Rights in the Software or the Channel Metrics Content.
2.             Licensee Ownership. Licensee shall own all right, title and interest in all Licensee Content and Data.
3.             Scope. The Intellectual Property Rights described in this Section 5 include all current and future worldwide patents and other patent rights, utility models, copyrights, trade secrets, trademarks, inventions, mask work rights, programs, program listings, procedures, programming tools, documentation, reports and drawings, and the related documentation or tangible expression thereof. Either Party, as applicable, shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary rights protections with respect to its own Intellectual Property Rights described in this Section 5. Either Party, as applicable, shall execute such documents, render such assistance, and take such other actions as may be reasonably requested by the other Party when necessary to apply for, register, perfect, confirm and protect any of its Intellectual Property Rights described in this Section 5.
4.             Underlying Methods. Except as set forth above in this Section 5, neither Party shall be restricted from using general, non-proprietary underlying methodologies, techniques or know-how learned or used in the course of performing this Agreement.

6. Term and Termination.

1.             Term. The term of this Agreement shall commence on the Effective Date and terminate on the termination date specified in the Statement of Work, unless earlier terminated by Licensee as provided for in this Agreement.
2.             Expiration. In the event that one or more Statements of Work are ongoing at the time this Agreement expires or is terminated, and this Agreement is not otherwise renewed or extended, then all of the terms and conditions of this Agreement shall continue to apply until the expiration or termination of the Statement of Work.
3.             Termination. The license of all rights granted hereunder shall terminate upon the earlier of the expiration or any other termination of this Agreement; provided, however, that termination in the event of a curable breach shall be subject to a notice period set forth in Section e below. For avoidance of doubt, there shall be no termination for convenience.
4.             Security. Each Party may perform an assessment of the security controls used by the other Party in accordance with the Party’s normal and customary procedures. Licensee and Channel Metrics will cooperate in good faith to promptly and fully remediate any security concerns raised as a result of an assessment.
5.             Breach. Either Party shall have the right to terminate this Agreement in the event of a breach of any of its terms after written notice and failure to cure such breach within thirty (30) days of the effective date of such notice, except that with respect to the failure to pay any amounts due and owing under this Agreement such cure period shall be ten (10) business days. Termination of this Agreement shall not constitute an election of remedies, and except as expressly limited by this Agreement, all rights and remedies shall be available to the non- breaching Party.

7. Confidential Information.

1.             Definition. Confidential Information (as hereinafter defined) shall be subject to the Non-Disclosure Agreement between the Parties, and in the absence of such agreement by the terms of this Agreement. Channel Metrics and Licensee each acknowledge that they may be furnished with, receive, or otherwise have access to information of or concerning the other Party which such Party considers to be confidential, proprietary, a trade secret or otherwise restricted. As used in this Agreement, "Confidential Information" means all information, in any form, furnished or made available directly or indirectly by one Party (the "Disclosing Party") to the other (the "Receiving Party") that (i) concerns the operations, affairs and businesses of the Disclosing Party, the financial affairs of the Disclosing Party, or the relations of the Disclosing Party with its customers, employees and service providers, or (ii) is marked confidential, restricted, proprietary, or with a similar designation. The terms and conditions of this Agreement shall be deemed Confidential Information.
2.             Ownership; Standard of Care. Each Party's Confidential Information shall remain the property of that Party except as expressly provided otherwise by the other provisions of this Agreement. Licensee and Channel Metrics shall each use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature.
3.             Excluded Information. "Confidential Information" shall exclude any information which Channel Metrics or Licensee can demonstrate (1) was, at the time of disclosure, in the public domain; (2) after disclosure, is published or otherwise becomes part of the public domain through no fault of the Receiving Party; (3) was in the possession of the Receiving Party at the time of disclosure to it; (4) was received after disclosure from a third party who had a lawful right to disclose such information without any obligation to restrict its further use or disclosure; or (5) was independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party. In addition, a Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other Party as required to satisfy any legal requirement of a competent government body provided that, immediately upon receiving any such request and to the extent that it may legally do so, such Party advises the Disclosing Party promptly and prior to making such disclosure in order that the Disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

8. Warranties.

1.             Warranty. Channel Metrics warrants to Licensee that its use of the Software in strict accordance with the terms of this Agreement will not infringe the patent, copyright, or trademark, or violate any trade secret right, of any third party.
2.             Limitation of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ALL SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANT- ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CHANNEL METRICS DOES NOT WARRANT, AND NOTHING IN THIS AGREEMENT IS INTENDED TO IMPLY, ANY WARRANTY THAT USE OR OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY ERRORS DISCOVERED WILL BE CORRECTED

9. Indemnification – General.

1.             Channel Metrics Indemnity Obligations. Channel Metrics shall indemnify, defend, and hold harmless Licensee and its officers, directors, employees, agents, successors, and assigns, from and against any liability, damage, loss, expense (including attorneys’ fees), claim or judgment to the extent arising out of or related to Channel Metrics’ negligence or willful misconduct, or the negligence or willful misconduct of Channel Metrics’ employees, agents, or independent contractors. Notwithstanding the foregoing, Channel Metrics shall have no indemnity or defense obligations under this Agreement to the extent any liability, damage, loss, expense, claim or judgment arises out of or relates to the acts or omissions of Licensee or its employees, agents, or independent contractors. For avoidance of doubt, Channel Metrics’ indemnity obligations shall not under any circumstances extend to any End User.
2.             Licensee Indemnity Obligations. Licensee shall indemnify, defend, and hold harmless Channel Metrics and its officers, directors, employees, agents, successors, and assigns, from and against any liability, damage, loss, expense (including attorneys’ fees), claim or judgment to the extent arising from or associated with (i) Licensee’s negligence or willful misconduct, or the negligence or willful misconduct of Licensee’s employees, agents, or independent contractors, (ii) Licensee’s use of its own products or services, or any Licensee Content and Data, (iii) use of information or materials provided to Channel Metrics by Licensee, (iii) infringement or claims of infringement arising out of (A) Licensee’s infringement of any third-party patent, copyright, or trademark, or (B) Channel Metrics’ compliance with Licensee’s written instructions or the use of any Licensee Content and Data or any other materials supplied by Licensee, (iv) claims by any End User arising out of or related to the Software or the Services, or (v) breach of this Agreement.

10. Channel Metrics Indemnification - Intellectual Property.

1.             Channel Metrics Indemnification. Channel Metrics shall indemnify and defend, or at its option, settle, any claim, suit or proceeding threatened or initiated against Licensee based on an allegation that use of the Software, in strict accordance with the terms of this Agreement, infringes any third-party patent, copyright or trademark, or violates any trade secret right, of any third party (“Claim”); provided that Licensee promptly notifies Channel Metrics in writing of its receipt of notice of any such Claim, or its own discovery of the potential for any such Claim, such that Channel Metrics is not prejudiced by any delay of notice or knowledge. Channel Metrics shall pay attorneys’ fees, court costs, and any final award of damages resulting from the litigation of any Claim, or alternatively the costs of settlement. Channel Metrics shall have sole control over the defense or settlement of any Claim. Licensee shall provide reasonable assistance in the defense of same, and Channel Metrics shall reimburse Licensee for its reasonable expenses incurred in providing such assistance.
2.             Remedies. If Channel Metrics determines that a claim of infringement may be valid, then at its sole expense and option, Channel Metrics may: (i) procure for Licensee the right to continue to use the allegedly infringing elements of the Software; or (ii) replace or modify the Software to make the same non-infringing; or (iii) accept return of the Software. Upon such return, Channel Metrics will refund to Licensee, pro-rata based upon the remaining term of the then applicable license, the Hosting Fees paid by Licensee that are associated with the terminated rights. THIS SECTION STATES LICENSEE’S EXCLUSIVE REMEDIES FOR INFRINGEMENT AND/OR MISAPPROPRIATION IN CONNECTION WITH THE SOFTWARE OR SERVICES

11.  Limitation of Liability.

1.             Limitation of Liability. Channel Metrics' total liability to Licensee shall in no event exceed the fees paid by Licensee to Channel Metrics under this Agreement, provided that this limitation shall not apply to Channel Metrics’ indemnification obligations under this Agreement.
2.             No Consequential Damages. IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL CHANNEL METRICS BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN CHANNEL METRICS HAS BEEN ADVISED OF OR CONTEMPLATED THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES ACKNOWLEDGE THAT THE FEES CHARGED CONTEMPLATE THE FOREGOING ALLOCATION OF RISK.

12.  Assignment of Agreement.

Licensee shall not assign this Agreement or any rights or obligations hereunder, except to the extent necessary to allow End Users to use the Software. Any attempt to do so shall be null and void and shall constitute a material breach of this Agreement. Licensee acknowledges and agrees that Channel Metrics may use contractors in the course of providing Services, including but not limited to third party hosting services.

13. Independent Contractors.

Nothing in this Agreement is intended, or shall be construed, to create a partnership, joint venture, or employer- employee relationship between the Parties. Except as otherwise expressly agreed to in writing, neither Party has the authority to act on behalf of or to enter into any contract, incur any liability, or make any representation on behalf of the other Party.

14. Amendment of Agreement.

No modification or amendment to this Agreement shall be binding unless set forth and agreed to in writing and signed by a duly authorized representative of each Party hereto. Without limiting the generality of the foregoing, regardless of any oral or written statement to the contrary, no provision of any transaction document (e.g., Statement of Work) employed by either Party, may alter, amend or supersede any term or condition set forth in this Agreement unless expressly set forth in such document and such document is executed by a duly authorized representative of each Party.

15. Notices.

All notices under this Agreement shall be in writing and shall be served by personal service or by mail at the address of the receiving Party set forth in this Section (or at such different address as may be designated by such Party by written notice to the other Party). All notices or demands by mail shall be deemed received (i) three (3) business days after sent by certified or registered mail, return receipt requested, (ii) on the date hand-delivered, or

(iii) one (1) business day after placed in the hands of a nationally-recognized overnight courier. Notice via email shall be valid as and when expressly set forth in this Agreement.

The failure to provide a copy as set forth above shall not invalidate any otherwise valid notice under this Agreement.

1.               Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware, United States without regard to conflict of law principals. Venue in any action arising out of or related to this Agreement shall be in Kent County, Delaware, United States.
2.               Attorneys’ Fees. In the event that any suit is filed arising out of or in connection with this Agreement, the substantially prevailing Party in such action shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses, including those incurred in connection with any appeal.
3.               Severance. In the event that any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such term shall be deemed modified to the minimal extent necessary to render it valid and enforceable, and all other terms and provisions hereof shall remain in full force and effect
4.               Survival of Terms. All provisions of this Agreement which, by their nature and in order to give full effect to such provisions, are intended to survive the expiration or earlier termination of this Agreement shall survive such expiration or termination.
5.               Integration. This Agreement constitutes the complete and entire agreement of the Parties with respect to its subject matter, and supersedes all previous communications, both oral and written. In the event of a conflict between the provisions set forth in this Agreement and those of any transaction documents, the terms of this Agreement shall prevail.
6.             Headings. Headings and subheadings used in this Agreement have been included for convenience and ease of reference only and will not in any manner influence the construction or interpretation of any provision of this Agreement
7.             Counterparts. This Agreement may be executed in two (2) counterparts by the Parties, both of which shall be considered one and the same agreement and shall become effective when a counterpart has been signed by each of the Parties. Electronic or faxed signatures shall bind the Party delivering the same.