Under the terms of and subject to the conditions of, this Agreement, including payment of all applicable Fees, Fabl will provide use of the Fabl Platform on a subscription basis (or as otherwise set forth in the Order Form) to Client. Client may use the Fabl Platform solely for its own internal use and the creation of its own Client Publications for its own use, including posting such Client Publications on Client’s designated website for viewing and access by End Users.
GENERAL USE; LIMITATIONS. Fabl shall provide Client with passwords and user id’s for use of the Fabl Platform. Client shall be responsible for the securing of such passwords and ids and shall be responsible for all use of the Fabl Platform under such Client accounts. Only Client’s employees and independent contractors (“Authorized Users”) may use the Fabl Platform and Client’s use of the Fabl Platform shall be limited to that number of named users as set forth on the Order Form. Client agrees to promptly notify Fabl of any loss, theft or unauthorized use of the passwords, user ids or Client’s account.
FABL OWNERSHIP. Fabl and its licensors shall have sole and exclusive ownership in and to the Fabl website (“Fabl Site”) the Fabl Platform and all customizations, updates, patches, enhancements, modifications and developments made by Fabl thereto (whether requested by or based on Client comments and feedback), including all Intellectual Property Rights associated therewith. This shall include any such cu Other than the limited rights to access and use the Fabl Platform as granted herein, Client shall not obtain any right, title or license in or to the Fabl Platform, including its underlying software. Fabl shall maintain ownership of all trademarks, service marks, trade names, logos or other commercial or product designations used by Fabl on or in connection with the Fabl Platform (“Fabl Marks’). Client acknowledges and agrees that the Client Publications may include the Fabl Marks as published on the Fabl Platform. All use of the Fabl Marks hereunder shall accrue to the benefit of Fabl.
OWNERSHIP BY CLIENT. Subject to Fabl’s ownership in and to the Fabl Platform, Client retains ownership and title to Client Publications and Client Cont
LICENSE. Client hereby grants to Fabl a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, store, modify, adapt (including as necessary to conform to requirements of the Fabl Platform and/or any devices, networks, services or other media on which the Fabl Platform is made available), publish, display, allow access to and distribute such Client Content and Client Publications as required for provision of the Fabl Platform. Fabl may also use, republish, post, distribute, display and edit limited “still shots” from publicly viewable Client Publications for the purposes of demonstrating use of the Fabl Platform and as part of Fabl’s client portfolio. If permitted by Client on the Order Form or otherwise, Fabl shall have the right to post, display and provide access to such Client Publication(s) on websites operated or controlled by or for Fabl.
RESTRICTIONS. Except as expressly authorized herein, Client will not use, copy, modify, distribute, sublicense, transfer, or create derivative works of the Fabl Platform. Client will not reverse engineer, decompile or disassemble the Fabl Platform (including its underlying software) or otherwise to attempt to reconstruct or discover the source code for the software. All rights in and to the Fabl Platform not expressly granted hereunder are reserved by Fabl.
SETUP OF FABL PLATFORM FOR CLIENT USE. Subject to payment of the setup fees set forth in the Order Form, Fabl will provide integration services (“Setup Services”) as agreed by the parties to enable Client’s use of the Fabl Platform. Fabl will perform the Setup Services in a professional and workmanlike manner, and will use commercially reasonable efforts to complete Setup Services in a timely manner. Client agrees to provide reasonable assistance and information for the Setup Services as requested by Fabl.
SUPPORT AND MAINTENANCE SERVICES. Subject to the terms and conditions herein, including timely payment of the Fees, Fabl will provide standard support services as part of the Fabl Platform service. Premium support is available for purchase. Client understands and agrees that Fabl may further develop, improve and otherwise modify the Fabl Platform during the term of this Agreement and that the form and specific functions of the Fabl Platform may change without prior notice. Client agrees to accept such changes, provided, however, that Fabl shall not modify the Fabl Platform in a manner that materially changes its overall function or purpose or materially adversely affects Client’s ability to use of the Fabl Platform without Client’s prior written consent.
FEES. You agree to pay Fabl all subscription fees (“Subscription Fees”) and other services fees (collectively, “Fees”) as set forth on the Fabl Site and on the Order Form, in accordance with the payment terms set forth therein. Except as otherwise specified in the Order Form, all Subscription Fees shall be paid in advance; provided that any fees based on usage shall be invoiced in arrears. Client shall pay all Fees within thirty (30) days of the date of invoice. Paid fees are non-refundable.
TAXES. Customer shall be responsible for all applicable taxes, however designated, incurred in connection with its use of the Fabl Platform, including but not limited to state and local privilege, excise, sales and use taxes but excluding taxes based on the net income of Fabl.
PAYMENT METHODS. Except as otherwise set forth on the Order Form, You will provide Fabl with valid and current credit card or online payment processor account information for payment of Fees. If You provide credit card or online payment processor account information to Fabl, You authorize Fabl to charge such credit card or other account for the Subscription Fees or other Fees as listed in the Order Form for the initial subscription term and any renewal subscription term(s). You are responsible for providing complete and accurate billing and contact information to Fabl and notifying Fabl of any changes to such information. Unless otherwise expressly set forth herein, all payments under this Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law. The fees and rates under this Agreement are subject to change by Fabl upon at least thirty (30) days written notice, which notice may include by posting the updated fees and rates on the Fabl Site or through the Fabl Platform.
If Client will have Ecommerce capabilities integrated with the Client Publications as indicated on the Order Form, the terms set forth below shall apply:
API License. Subject to payment of applicable revenue sharing and any other fees, Fabl hereby agrees to license to Client a non-exclusive, nontransferable right to use the Fabl API solely for use in connection with the Fabl Platform. All right, title and interest in and to the Fabl API, including all Intellectual Property Rights, shall be the sole and exclusive property of Fabl. Client shall not sublicense its rights hereunder or disclose, distribute, modify, or create derivative works of the API without the prior written consent of Fabl. Fabl reserves all rights in and to the API not expressly granted herein.
Revenue Sharing. Client agrees that it shall pay Fabl a revenue-share on all products or services sold through such ecommerce function as set forth on the Order Form. The Fabl Platform includes functionality to allow for Fabl to track the ecommerce transactions on the Fabl Platform from or in the Client Publications and, where applicable, Fabl will invoice Client on a monthly basis for payment of the revenue share amounts owed to Fabl under this Section based on the Fabl Platform reports; which invoices shall be due and payable within thirty (30) days of invoice. Client also agrees to provide to Fabl on a monthly basis its own accounting of such ecommerce transactions for reconciliation with the Fabl Platform reports Client shall keep accurate and complete books of account containing sufficient information to support the amounts due and payable to Fabl under this ecommerce revenue-share. When applicable, Fabl will retain agreed-to revenue share percentage from such ecommerce transactions via payment processing via Braintree, or comparable solution(s). Upon reasonable advance notice and no more than once during each calendar year, Fabl shall have the right to review and audit (or to have its designated representative review and audit) all such books and records for the purpose of verifying Client’s payment obligations. Client will not circumvent any of the tracking tags or functionality in the Fabl Platform in a manner intended to mask any ecommerce transactions for which payment is due to Fabl.
Ecommerce Sales. All sales of products and services by Client to customers using the ecommerce functionality shall be solely between Client and its customer. Fabl shall not be a party to any such sale and shall have no liability with respect to any such products or services, and Client agrees to indemnify and hold Fabl harmless from and against all third party claims, demands or causes of action, including by Client’s customers, with respect to the sale of Client’s products and services through the Fabl Platform. All such products and services must comply with all applicable laws, rules and regulations.
TERM. The subscription term of this Agreement shall be as set forth on the Order Form, unless otherwise renewed or terminated pursuant to Sections 6.2 or 6.3 below. Any separate support term shall be as set forth on the Order Form, subject to payment of applicable fee.
RENEWAL. Upon expiration of the initial Term as set forth on the Order Form, the Subscription Term shall automatically renew for subsequent one-year terms, unless either party notifies the other of its intent not to renew at least sixty (60) days prior to the end of the then-current Term. Fabl reserves the right to increase its subscription and other fees and otherwise modify the terms of this Agreement for any renewal term, provided that it shall provide Client at least sixty (60) days notice of such changes prior to the end of the then-current term.
TERMINATION. Upon the failure or refusal of Client to pay any fees when due, Fabl may terminate this Agreement and/or suspend Client’s access to and use of the Fabl Platform upon 10 days’ written notice unless Client pays such fees prior to the end of such 10-day period. In other cases, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for 30 days. Fabl reserves the right to discontinue the Fabl Platform at any time, in which event, Fabl’s sole liability for such discontinuance will be to refund any prepaid Fees to Client.
EFFECT OF TERMINATION. Any sections which by the nature or expressly indicated shall survive the expiration or termination of this Agreement. Upon termination or expiration, Client shall not have the right to use the Fabl Platform or post or permit access to the Client Publications on the Fabl Platform, and Client may download and migrate the Client Content to another platform, subject to payment of Fabl’s service fees as agreed between the parties for a period of 30 days. Client understands that due to the nature of the Fabl Platform and the internet generally, Client Content or Client Publications may continue to be available to others, including due to any sharing, republication, or other distribution by others using Fabl Platform features, and that Fabl cannot guarantee that all copies of the Client Publications that may be in circulation will be taken down or deleted.
FABL WARRANTIES. Fabl warrants that to Fabl’s knowledge its Fabl Platform when used as instructed does not: (a), infringe on the Intellectual Property Rights of any third party; or (b) violate any law, statute, ordinance or regulation. These warranties do not extend to Client Content or User Generated Content.
CLIENT WARRANTIES. Client represents and warrants that it has the right to transfer, display and use Client Content, and that Fabl’s display and other use of such Client Content in connection with Client’s use of the Fabl Platform hereunder is not and will not be illegal or infringe on any third party’s rights. Client is solely responsible for the licensing, accuracy, creation and publishing of the Client Content. During the term hereof, Client shall not publish or otherwise distribute on the Fabl Platform any Client Content that: (a) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, pornographic or indecent, or constitutes hate speech or encourages, sanctions or perpetuates discrimination, denigration, harm, enmity or violence against any person or group, including due to sexual orientation, gender identity, religious belief, disability, race or ethnicity; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (collectively “Content Restrictions’). Client shall also be responsible for all content, including text, pictures, audio, graphics, video, trademarks, service marks, logos, image, comments, posts, links and other materials or data provided, posted or uploaded by End Users viewing, using or accessing Client Publications through the Fabl Platform (“User Generated Content”), including compliance of such User Generated Content with the Content Restrictions. Fabl will have the right, but not obligation, to review and monitor Client Content and User Generated Content and to suspend or remove access to any Client Content, User Generated Content or Client Publication that Fabl reasonably believes violates the Content Restrictions or otherwise creates significant risk for Fabl.
Disclaimer Of Warranties. EXCEPT AS SET FORTH HEREIN, FABL EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWELDGES AND AGREES THAT FUNCTIONALITY OF THE FABL PLATFORM OR THE AVAILABILITY OF A CLIENT PUBLICATION IS DEPENDENT IN PART ON AVAILABILITY OF THE INTERNET, THE OPERATIONS AND COMPATIBILITY OF THE EQUIPMENT, SOFTWARE AND NETWORK OF CLIENT, END USERS AND THIRD-PARTY HOSTING SOLUTIONS PROVIDERS, NONE OF WHICH IS WARRANTED OR GUARANTEED HEREBY. ADDITIONALLY, COMPLETE SECURITY CANNOT BE GUARANTEED OF ANY INFORMATION WHICH IS TRANSMITTED OVER OR ACCESSIBLE VIA THE INTERNET, AND ALTHOUGH FABL WILL EMPLOY (AND WILL UTILIZE THIRD-PARTY HOSTING SOLUTIONS PROVIDERS WHO EMPLOY) SECURITY MEASURES WHICH ARE IN COMPLIANCE WITH INDUSTRY STANDARDS, THE FABL CANNOT GUARANTY OR WARRANT THE ABSOLUTE SECURITY OF CLIENT CONTENT OR CLIENT PUBLICATIONS, INCLUDING WORKS IN PROGRESS AND OTHER INFORMATION OF THE CLIENT OR ITS CUSTOMERS OR END USERS WHICH MAY BE STORED IN, GENERATED FROM OR OTHERWISE DISCOVERED FROM THE USE OF THE FABL PLATFORM OR SERVERS ON WHICH IT IS HOSTED. FABL DOES NOT WARRANT THAT THE FABL PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS.
Limitations On Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR ACTUALITY OF SICH DAMAGES OR LOSSES. CLIENT AGREES THAT FABL’S MAXIMUM AGGREGATE DAMAGES FOR ANY ACTION ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT WHICH THE FABL HAS RECEIVED FROM THE CLIENT IN THE TWELVE (12) MONTHS PRIOR TO FILING OF SUCH ACTION. ALL CLAIMS OR CAUSES OF ACTION BY CLIENT MUST BE BROUGHT WITHIN ONE (1) YEAR FOLLOWING THE OCCURRENCE OF THE EVENT RESULTING IN SUCH CLAIM OR ACTION. A party’s indemnification obligations not subject to these limitations.
FABL INDEMNITY. Fabl at its expense, shall defend any action, suit or proceeding brought against Client which alleges that the Fabl Platform as provided by Fabl and used in accordance with its documentation infringes any copyright, patent or other Intellectual Property Right enforceable in the United States, and Fabl shall pay damages finally awarded against Client (including court costs and reasonable attorneys’ fees). The foregoing indemnity shall not apply if the alleged infringement is attributable to: (a) the Client Publication or any Client Content or User Generated Content; (b) any unauthorized use of the Fabl Platform, or (c) if the Fabl Platform is modified by any person or entity other than Fabl. THIS SECTION STATES FABL’S SOLE LIABILITY TO CLIENT OR ANY THIRD PARTY CLAIMING THROUGH CLIENT WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS, PROVIDED HOWEVER THAT THIS PROVISION WILL NOT PRECLUDE EITHER PARTY FROM SEEKING EQUITABLE RELIEF AS EXPRESSLY PERMITTED UNDER THIS AGREEMENT.
CLIENT INDEMNITY. Client shall indemnify and hold harmless Fabl against any third party claim, action, suit or proceeding arising from or alleging (i) the breach by Client (or its customers, end users, employees or contractors) of this Agreement or (ii) that any Client Publication, Client Content or User Generated Content associated with a Client Publication: (A) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (B) violates any law, statute, ordinance or regulation; (C) otherwise violates the Content Restrictions. Client shall indemnify Fabl for all losses, damages, liabilities and all reasonable expenses and costs incurred by Fabl as a result of a final judgment entered against Fabl in any such claim, action, suit or proceeding.
PUBLICITY, MARKETING. Fabl may include a “powered by Fabl” or other similar text and/or logo in the Client Publications as determined by the Fabl Platform functionality. Fabl may advertise online and in print that Client is a client and utilizes the Fabl Platform, and may include a copy of Client’s name and trademarks on such materials.
GOVERNING LAW, INJUNCTIVE RELIEF. Any claim or controversy relating in any way to this Agreement shall be governed and interpreted exclusively in accordance with the laws of the State of North Carolina and the United States. Unless mutually agreed otherwise, any mediation or arbitration in connection with this Agreement shall be conducted in Raleigh, North Carolina, United States of America. In addition, the parties acknowledge and agree that the state courts located in Wake County, North Carolina, United States of America and the federal courts located in Raleigh, North Carolina, United States of America shall have exclusive jurisdiction in any action or proceedings with respect to this Agreement. The parties agree that in the event of a breach or threatened breach by the other party of any intellectual property or confidentialty provisions, the non-breaching party may suffer damages for which there is no adequate monetary relief. Accordingly, in the event of any such breach or threatened breach of any such provisions, the non-breaching party may, either with or without pursuing any other remedies available under this Agreement or by law, immediately seek injunctive relief from any proper court of law or equity.
INDEPENDENT CONTRACTORS. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
NOTICE. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified in the Order Form or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile or email, upon confirmation of receipt; the next business day if sent via reputable overnight courier or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing.
FORCE MAJEURE. Neither party shall be held responsible for damages caused by any delay or default beyond its reasonable control, including denial of service attacks. The delaying party shall promptly notify the other party of the delay and its anticipated effects on the Delivery Schedule.
ENTIRE AGREEMENT. This Agreement, and the Order Form(s), sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Fabl may modify this Agreement in its sole discretion, provided that it will post on the Fabl Site or through the Fabl Platform notice of significant modification and any such modifications shall be fifteen 15 days following such posting, or if Client has executed and paid in advance for a subscription term upon renewal of such subscription term.