Managed Services Terms & Conditions
Standard Terms and Conditions for Lobus Managed Services (last updated 10/22/20)
These are the Standard Terms and Conditions for Lobus Managed Services between Lobus, Inc. and the customer set forth on the relevant Invoice (“Company”).
Description of the Service. The Service will generally contain the content described on the Invoice. Lobus shall use commercially reasonable efforts to distribute the Service with the frequency set forth on the Invoice; provided, however, in no event shall Lobus be required to distribute the Service on a federal holiday or the Friday after Thanksgiving. The distribution of the Service requires the Company’s delivery to Lobus of Company Materials, in each case, in accordance with the Invoice. Lobus shall be responsible for the organization of the content within the Service, excluding Company Materials.
Ownership. Company shall own all right, title and interest in and to the Company Materials, including copyright, trademark, and other intellectual property rights; provided, however, that Company grants to Lobus a nonexclusive license during the Term to use the Company Materials for the sole purpose of fulfilling its obligations hereunder. Except for such license, nothing herein shall effect a transfer of any such rights. “Company Materials” means any and all materials, content, data, contact information, trademarks and other information provided to Lobus by or on behalf of Company for use in connection with the Service. Lobus shall own all right, title and interest in and to the Service (excluding Company Materials)and the development, creation, and delivery thereof, including patent, copyright, trademark, and other intellectual property rights. Nothing herein shall effect a transfer of any such rights.
Payment. Lobus shall invoice Company for the Service Fee on the schedule set forth on the Invoice. Company shall remit all amounts set forth in any invoices delivered by Lobus to the Company pursuant to the terms of this Agreement within thirty (30) days of receipt. Unpaid amounts shall accrue interest at the rate of 1.5% per month, or the highest rate allowed by law, whichever is less. Company shall be responsible for the payment of all applicable federal, state, local, municipal, sales and other taxes relating to the activities contemplated hereunder, except for taxes based on the net income of Lobus.
Term and Termination. Either party may terminate this Agreement in the event of a material breach by the other party (so long as the other party is not also in material breach) that remains uncured for ten (10) days following the breaching party’s receipt of written notice thereof. Upon expiration or termination: (a) all licenses granted hereunder shall automatically cease; (b) Lobus will cease to distribute the Service with Company Materials as soon as reasonably practicable; (c) each party shall promptly return or destroy all confidential information of the other; and (d) the following Sections shall survive: 2 and5-6.
Representations and Warranties; Indemnity; Disclaimer.5.1 By Company. Company represents and warrants that: (a) it has the right to provide the Company Materials for Lobus’s use as described herein; and (b) the Company Materials and the use thereof by Lobus will not be libelous or defamatory, violate any law, rule, or regulation (including with respect to privacy and email distribution), or violate or infringe any right of any third party. Company agrees to indemnify, defend and forever hold Lobus (and each of its affiliates, and its and its affiliates’ present and former officers, members, shareholders, directors, employees, representatives, and agents, and the successors, heirs and assigns of any of these) harmless from and against any and all losses, liabilities, costs, damages, payments, fines, and expenses (including reasonable attorneys’ fees) which Lobus may incur as a result of any third-party claims arising from or related to a breach or alleged breach of Company’s representations and warranties set forthherein.5.2 DISCLAIMER. EXCEPT AS OTHERWISE SET FORTH ABOVE, ALL OTHER REPRESENTATIONS ANDWARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE OPERATION OF THESERVICE AND/OR EITHER PARTY’S PERFORMANCE UNDER THIS AGREEMENT ARE EXPRESSLYEXCLUDED. WITHOUT LIMITING THE FOREGOING, EACH PARTY DISCLAIMS ANY IMPLIED WARRANTIESOF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN WITH RESPECT TO THEINDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6: (A) NEITHER PARTY SHALL BE LIABLE FORANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC, SPECIAL, EXEMPLARY OR PUNITIVEDAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AS A
RESULT OF ANY BREACH OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY OR OBLIGATIONUNDER THIS AGREEMENT; AND (B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS ARESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ISBASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY,EXCEED THE AMOUNT OF THE SERVICE FEE PAID BY COMPANY TO LOBUS IN THE PRIOR TWELVE (12)MONTHS.
- Miscellaneous. This Agreement shall be binding upon the parties, their successors, and permitted assigns. Neither party may assign this Agreement in whole or in part, without the express written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may assign this Agreement without first obtaining such consent to any entity that it controls, is controlled by, or is under common control with, or in connection with a merger, consolidation, or sale of all or substantially all of its assets, stock or other equity interests. This Agreement will be construed in accordance with the laws of the State of New York (excluding its choice-of-law rules) and the local or federal courts located in New York, New York will have exclusive jurisdiction over any proceeding relating hereto. No waiver of any breach of any term or condition of this Agreement shall constitute a waiver of any subsequent breach. If any term shall be held unenforceable, such term shall be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. Except for Company’s obligation to pay amounts due hereunder, neither party shall be deemed in default or otherwise liable due to a cause beyond that party’s reasonable control. Neither party shall, without the prior written consent of the other party, disclose to any third party any non-public information provided by either party to the other, whether written or oral, either designated as “proprietary” or “confidential”, or reasonably understood to be confidential in light of all surrounding circumstances. Written notices sent pursuant to this Agreement shall be delivered by commercial overnight courier to the applicable signatory at the address set forth on the Invoice. The timing and content of any public announcements or communications relating hereto shall be subject to the mutual agreement of the parties. This Agreement contains the entire agreement and understanding between Lobus and Company, and supersedes all written and oral understandings and negotiations relating to the subject matter hereof. This Agreement may not be amended or modified except in a writing signed by both parties. Nothing herein shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee.