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Promotional Showcase Agreement

 

This Promotional Showcase Agreement (the "Agreement") is by and between the company, organization, or other legal entity accepting the terms of this Agreement  ("Participant"), and Blues Inc. ("Blues") (each a "Party" and together the "Parties"). This Agreement shall be effective on the date that Participant accepts the terms and conditions in the manner described below (the "Effective Date").

By clicking "I accept", "I agree", or similar button, or by otherwise indicating Participant's acceptance in another manner we may request: (i) you represent and warrant that you have authority to act on behalf of, and to bind, Participant and (ii) Participant agrees to this Promotional Showcase Agreement and to be legally bound by the terms and conditions herein.

 

Recitals

Blues has created a program and set of webpages to showcase products and services that incorporate Blues Hardware (the "Program" and "Program Webpages" respectively). The Program Webpages (i) provide Blues’ existing and potential customers with use cases for Blues Hardware; (ii) promote participants who are interested in designing or have designed IoT products that include Blues Hardware; and (iii) offer program participants with an advertising stream and additional sales channel (if desired) via links to the participant's ecommerce website. Blues does not charge participants for the Program, and does not take referral fees or other compensation for sales that participants may make via Program Webpages.

Participant has developed one or more products that incorporate Blues Hardware. Participant wishes to participate in the Program, and Blues is willing to include Participant in the Program, all on the terms and conditions set out below.

Agreement

1.       Defined Terms. Capitalized terms not defined in context have the meaning set forth below or in the Blues Hardware Terms and Conditions (located at https://shop.blues.io/pages/hardware-terms).

1.1        "Affiliate" means any entity that controls, is controlled by or is under common control with a Party.

1.2        "Baseline Content" means, as applicable: (i) Participant's descriptions of Participant Products and (ii) Business Descriptions prepared by Participant, in each case including associated images, videos, datasheets, and similar materials.

1.3        "Blues Hardware" means (i) Notecards and (ii) Additional Blues Hardware as defined in the Blues Hardware Terms and Conditions (https://shop.blues.io/pages/hardware-terms).

1.4        "Blues-Created Content" means images, videos, product descriptions, business descriptions, and similar materials that meet the following criteria: the materials (i) relate to the Participant Product or a Business Description (as applicable) and (ii) are created by Blues for the purposes of promoting the Participant Product or the Participant itself on the Showcase Webpage. The term "Blues-Created Content" includes Blues modifications of the Baseline Content.

1.5        “Business Description” means a description of Participant’s capabilities, services, personnel, or other elements of its business, all as they relate to work with Blues Hardware.

1.6        "Intellectual Property" or "Intellectual Property Rights" means, in any jurisdiction, rights under patent, trademark, and copyright law; rights in trade secrets and confidential information; rights in mask works; and other similar rights to exclude another from the use or enjoyment of an asset or process.

1.7        "Participant Marks" means the trademark or trademarks provided by the Participant for inclusion on the Showcase Webpage.

1.8        "Participant Products" is defined in Section 2.1 (Participant Products).

1.9        "Showcase Webpage" means the Program Webpage that displays Participant Products and/or a Business Description of Participant.

 

2.       The Showcase Webpage.

2.1        Participant Products. Participant is entitled to provide Blues with a list of its products that include Blues Hardware and that it proposes to include in the Program. Blues is entitled to select from this list the products it wishes to include in the Program, and the products Blues selects in this manner are referred to as the "Participant Products."

2.2        Baseline Content. Participant shall provide (i) Baseline Content for each of the agreed-upon Participant Products and (ii) if mutually agreed, a draft Business Description.

2.3        Showcase Webpage; Approval. Using Baseline Content, Blues-Created Content, and Participant Marks, Blues will prepare a draft of the Showcase Webpage, and submit the draft to Participant for review and comment. Upon Participant's approval of the draft, Blues will post the agreed-upon Showcase Webpage.

2.4        Updates. If Participant expects material changes to a Participant Product or to its Business Description, Participant will notify Blues and provide updated Baseline Content for such Participant Product or Business Description. In response to such notice and updated Baseline Content, Blues shall either (i) restart the draft and approval processes listed in 2.3 (Showcase Webpage; Approval) or (ii) remove the Participant Product or Business Description at issue from the Showcase Webpage. While updates are pending, the existing information will remain on display unless otherwise requested in writing by Participant.

2.5        Removal. If Participant wishes to remove a Participant Product or Business Description from the Showcase Webpage, Participant shall notify Blues and Blues will timely remove the Participant Product or Business Description.

 

3.       Grant of Rights.

3.1        Grant of License in Participant Marks. During the Term and under its Intellectual Property Rights, Participant hereby grants to Blues a non-exclusive, worldwide, non-transferable, non-assignable, non-sublicensable, royalty free, revocable license to use Participant Marks on the Showcase Webpage for purposes of marketing and promoting Participant Products and Participant’s business.

3.1.1      Goodwill. All use of Participant's Marks on the Showcase Webpage, and all goodwill resulting therefrom, shall inure solely to the benefit of the Participant.

3.1.2      Quality. Blues agrees that its use of, and advertising and promotional activities under, the Participant's Marks on the Showcase Webpage shall meet or exceed the standard of quality adhered to by Blues, as of the Effective Date, in the conduct of its own business under its own trademarks.

3.2        Copyright License to Blues. During the Term and under its Intellectual Property Rights, Participant hereby grants to Blues a non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty free, revocable license (i) to copy, distribute, publicly display, publicly perform, stream, and otherwise use the Baseline Content for purposes of the Showcase Webpage; (ii) to modify the Baseline Content to create Blues-Created Content; and (iii) to copy, distribute, publicly display, publicly perform, stream, and otherwise use the Blues-Created Content for purposes of the Showcase Webpage.

 

4.       Reservation Of Rights.

4.1        Ownership. Except for the license rights expressly granted under Section 3 (Grant of Rights), as between the Parties, Participant owns all right, title and interest in and to Participant Products, the Participant Marks, Baseline Content, and all associated Intellectual Property. As between the Parties, Blues owns all right, title and interest in and to the Blues-Created Content and associated Intellectual Property; provided, however, that Blues shall not use Blues-Created Content except in connection with the Showcase Webpage.

4.2        Right to Market and Develop Other Products. This Agreement does not restrict a Party's freedom of action, and each Party is entitled to market and demonstrate its own or third party products, services, and solutions and develop or offer products and services, including those that are competitive with the products and services of the other Party, provided such Party complies with the confidentiality obligations set out in this Agreement.

4.3        No Joint Development. The Parties do not intend to create joint works of authorship or other jointly owned Intellectual Property under this Agreement.

4.4        No Implied Licenses. No license will be implied under this Agreement or by any course of conduct or usage.

 

5.       No Fees to Blues; Expenses. Participant has no obligation to compensate Blues under this Agreement, and Blues will not receive referral fees or other sums from Participant in connection with the Showcase Webpage or from sales Participant may make related to its participation in the Program. Each Party is responsible for its own expenses under this Agreement.

 

6.       Links to Participant Website. The Showcase Webpage may contain links to the Participant's own website. Blues takes no responsibility for Participant's website or disputes arising from such website.

 

7.       Confidentiality; Publicity. This Section 7 (Confidentiality; Publicity) governs Confidential Information (as such term is defined below) that one Party (the "Disclosing Party") discloses to the other Party (the "Receiving Party") in connection with this Agreement.

7.1        Confidential Information. The term "Confidential Information" means non-public information of the Disclosing Party, including all non-public data, summaries, reports or information with respect to the Disclosing Party's business, finances, customers, technology, or products.

7.2        Treatment of Confidential Information. Neither Party shall use or disclose any Confidential Information, except: (i) as expressly permitted under this Agreement; (ii) to its personnel and the personnel of its Affiliates who have a need to know such Confidential Information; (iii) to the extent necessary to comply with applicable law, a valid order of an administrative agency or a court of competent jurisdiction, in which event the Disclosing Party shall so notify the other Party as promptly as practicable (and, if possible, prior to making such disclosure), and shall in all cases seek confidential treatment and redaction of the Confidential Information to the extent reasonably possible; (iv) to the extent necessary to enforce its rights pursuant to this Agreement; or (v) with the other Party's advance written consent. The Receiving Party will ensure that its personnel and Affiliates are aware of, and agree to be bound by, the terms of this Section 7, and shall be responsible for any breach of this Section 7 by its personnel or Affiliates.

7.3        Exceptions to Confidentiality. The Receiving Party shall have no obligation to treat as confidential any information which: (i) was previously known to the Receiving Party free of any confidentiality obligation; (ii) is or becomes publicly available other than by the Receiving Party's breach of its obligations; or (iii) is independently developed by the Receiving Party without reference to the Confidential Information.

7.4        Publicity. Independent of the Showcase Webpage, neither Party shall issue public statements or announcements relating to this Agreement without the prior consent of the other Party.

 

8.       Representations And Warranties. Each Party represents and warrants that: (i) it is an entity duly organized, validly existing and in good standing under the laws of the state of its organization; (ii) it has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder; (iii) the individual executing this Agreement has the authority to do so; (iv) it is and shall remain in compliance with applicable law; and (v) it shall not knowingly use the rights granted to it hereunder for any unlawful purpose.

 

9.       Indemnification.

9.1        Blues Indemnities. Blues shall indemnify, defend, and hold harmless Participant, its Affiliates, and their respective officers, directors, employees and stockholders, from and against claims by third parties that Blues-Created Content infringes the Intellectual Property Rights of such third party. Blues shall indemnify Participant for all losses, damages, liabilities, and all expenses and costs (including attorneys' fees and experts' fees) incurred by Participant in any such claim.

9.2        Participant Indemnities. Participant shall indemnify, defend, and hold harmless Blues, its Affiliates, and their respective officers, directors, employees and stockholders, from and against claims by third parties that the Baseline Content or the Participant Marks infringe the Intellectual Property Rights of such third party. Participant shall indemnify Blues for all losses, damages, liabilities, and all expenses and costs (including attorneys' fees and experts' fees) incurred by Blues in any such claim.

9.3        Indemnification Process. The Party entitled to indemnification (the "Indemnified Party") shall timely notify the Party obligated to provide indemnification (the "Indemnifying Party") of any claim subject to indemnification, and shall provide reasonable cooperation, information, and assistance in connection with the Indemnifying Party's defense of such claims (at the Indemnifying Party's reasonable expense). The Indemnified Party shall be entitled to participate in the defense of such claims, at its expense. The Indemnifying Party will not enter into a settlement or consent judgment that adversely affects the Indemnified Party's rights or interest without its prior written approval, such approval not to be unreasonably withheld or delayed.

 

10.     Limitations Of Liability. Each Party's entire liability and the other Party's sole and exclusive remedy for damages on account of any claim of any type whatsoever arising hereunder (except for liability arising under Section 7 (Confidentiality; Publicity) or Section 9 (Indemnification by Parties)), shall be limited to proven direct damages in an amount not to exceed on a per claim or aggregate basis $1,000. Neither Party shall be liable for any indirect, special, incidental, exemplary, punitive or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.

 

11.     Term and Termination

11.1      Term. The term of this Agreement shall commence on the Effective Date and expire when terminated by the Parties pursuant to Section 11.2 (Termination) (the "Term").

11.2      Termination. This Agreement may be terminated by either Party: (a) for convenience by providing fifteen (15) days advance written notice of termination to the other Party; or (b) upon no less than fifteen (15) days advance written notice for any material default or breach of the terms this Agreement by the other Party, unless the defaulting Party cures such default or breach within the fifteen (15)-day cure period.

11.3      Duties Upon Termination. Upon termination of this Agreement, (i) Blues will promptly take down the Showcase Webpage; (ii) the licenses granted to Blues under Section 3 (Grant of Rights) shall cease; and (iii) each Party shall destroy or return the Confidential Information of the other.

11.4      Survival. The respective obligations of Blues and Participant set forth in: Section 4.1 (Ownership), Section 7(Confidentiality; Publicity), Section 9 (Indemnification), Section 10 (Limitations of Liability) and Section 11.3 (Duties Upon Termination) shall survive the termination of this Agreement.

 

12.     General Provisions.

12.1      No Impact on Other Agreements. For the avoidance of doubt, this Agreement shall not modify obligations between the Parties under other agreements, including the Blues Hardware Terms and Conditions.

12.2      Independent Contractors. Each Party is an independent contractor. Neither Party shall be, or hold itself out as, the agent of the other Party under this Agreement. Nothing contained herein shall be deemed to create, and the Parties do not intend to create, any relationship of partners or joint venturers, and neither Party is authorized to, or shall act toward, third parties or the public in a manner that would indicate any such relationship. Neither Party shall have the authority to bind the other Party to any contract or otherwise make representations as to the policies and procedures of the other Party other than those specified in this Agreement. Each Party assumes full responsibility for the acts of its employees.

12.3      Assignment. Neither Party is permitted to assign or otherwise transfer its rights and obligations under this Agreement.

12.4      Notices. Any notice or other communication required or permitted by this Agreement will be in writing and will be sent by post (with such notice being effective 4 days after mailing) or by email (with such notice being effective upon receipt by the addressee in the "To" line).  Blues' contact information for notices is set forth in the Blues Hardware Terms and Conditions (https://shop.blues.io/pages/hardware-terms). Participant's contact information for notices is provided as part of the sign-up process. Either Party may change its contact information for notices under this Agreement by giving the other Party notice of that change.

12.5      Governing Law. This Agreement will be governed by the law of the State of New York, USA, without regard to its conflict of law principles. Both Parties agree to submit to the exclusive jurisdiction of the State and Federal Courts sitting in the judicial district that includes New York City, New York, and to the laying of venue in such judicial district.

12.6      No Third Party Beneficiaries. This Agreement is for the benefit of Blues and Participant and does not provide any third party the right to enforce it or grant any other right or privilege.

12.7      Entire Agreement; Amendment; No-Waiver; Severability. Except as stated elsewhere in this Agreement, this Agreement constitutes the complete and exclusive agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understanding, written or oral, with respect to the subject matter hereof. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each Party. A waiver by either Party of any breach of this Agreement must be in a writing signed by the Party making the waiver and will not operate as a waiver of any other breach of this Agreement. If any provision of this Agreement is held invalid or unenforceable for any reason, the invalidity shall not affect the validity of the remaining provisions of the Agreement and the Parties will negotiate a substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.