MSSA

Master Subscription and Services Agreement

 

This Master Subscription and Services Agreement (“Agreement”) is dated [________], 2014 (“Effective Date”) and entered into between Tagible, LLC, a Colorado limited liability company (“Tagible”) and [CUSTOMER NAME] (“Customer”).

Tagible has developed certain internet-enabled software and video organization services, as further described below, that Tagible provides for use by its customers.  This Agreement sets forth the terms and conditions under which Tagible will provide the Services (as defined below).  All capitalized terms used but not otherwise defined herein shall have the meanings specified in Appendix 1 hereto. Tagible and Customer agree as follows:

1.   Services.

1.1    Scope of Agreement.  This Agreement governs: (a) Customer’s access to and use of the System on a subscription basis during the Term; (b) the access to and use of the System by Customer’s Guests; (c) all Services purchased by Customer from Tagible.   Future purchases for additional services shall be made by submission of additional Orders by Customer and acceptance of such Orders (which shall then be incorporated into this Agreement) by Tagible.  The additional services will be deemed added to the definition of Services.

1.2  Provision of Services.  Beginning on the Service Delivery Date and continuing during the Term, Tagible will provide the Services to Customer for use by Customer and its Guests, provided that Customer must access the Services and make the Services available to Guests with computer software, hardware, and internet connectivity consistent with the Minimum Customer Requirements section of the attached Order.

1.3  Access.  Subject to the terms and conditions of this Agreement, Tagible grants to Customer, during the Term, a non-exclusive, non-transferable right to remotely access, use, and display the Services embedded into Customer’s Website for use by Customer and its Guests.  Such access, use, and display: (a) shall be limited to a single web domain; (b) must be in accordance with the Documentation and any limitations set forth in the applicable order; (c) must comply with the other terms and conditions of this Agreement; (d) must comply with the terms of the Tagible Terms of Use made available at www.tagible.com/Terms (the “Tagible Terms”) (e) must comply with the YouTube “Terms of Service,” “Community Guidelines,” “Privacy Policy,” and other copyright policies then in effect and made available to YouTube users on www.youtube.com and its subdomains (collectively, the “YouTube Policies”).  To the extent this Agreement conflicts with the Tagible Terms, this Agreement shall control.

1.4  Customer.  Customer will be assigned a unique user identification name and password (“User ID”) for access to and use of the Services.  Customer shall be responsible for ensuring the security and confidentiality of its User ID.  Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and will notify Tagible promptly of any such unauthorized use.  Access to the Services, other than for the purpose of allowing Guests to search videos using the Service from Customer’s Website, cannot be shared with anyone other than a User.  Customer is responsible for all activities of Users and its Guests that occur under its account.

1.5   Restrictions.  Except as expressly permitted in this Agreement, Customer will not, and will not permit any third party to:  (a) reverse engineer, disassemble or decompile any component of the System; (b) interfere in any manner with the operation of the System or the hardware and network used to operate the Services; (c) sublicense or transfer any of Customer’s rights under this Agreement or otherwise use the Services for the benefit of a third party or to operate a service bureau, except as otherwise provided in this Agreement; (e) modify, copy or make derivative works based on any part of the System; or (f) otherwise use the Services in any manner that exceeds the scope of use permitted under this Section 1.  Customer will use the Services, Software and System in compliance with the Documentation and the YouTube Policies. Throughout the Term, Customer is solely responsible for reviewing, understanding, and complying with the YouTube Policies then in effect.

1.6   Cooperation.  The parties shall reasonably cooperate with each other to facilitate Tagible’s provision of the Services for Customer.

1.7    Customer Environment.  Except as otherwise specified in an Order, Customer shall be solely responsible for, at its own expense, acquiring, installing and maintaining the Customer Environment.

2.  YouTube.

2.1   No YouTube Affiliation. The Tagible Software allows Customer to affiliate custom descriptions (“Tags”) with links to video content made available by YouTube through its Embeddable Player. Customer understands and acknowledges Tagible is not affiliated with YouTube in any way and that Tagible’s Software does not deliver, modify, or add to any video, text, or other content made available by YouTube, including through the YouTube Embeddable Player.  Customer further understands and acknowledges that Tagible is not selling any video, text, or other content owned, licensed, or delivered by YouTube and that Customer’s and its Users and Guests’ use, access to, and display of such content is subject to the YouTube Policies.  Tagible has no responsibility to investigate or ensure Customer’s or its Users’ and Guests’ compliance with the YouTube Policies and shall not be liable for any of Customer’s or its Users’ or Guests’ breach of such YouTube Policies.

2.2   YouTube Availability. Customer understands and acknowledges that the use of the Software is dependent on the availability of the YouTube Services. Customer agrees: (a) Tagible cannot guarantee the availability of the YouTube Services; (b) Tagible is not responsible for the availability of the YouTube Services; and (c) that the unavailability of the YouTube Services shall in no way affect Customer’s obligations under this Agreement including its obligation make any payment to Tagible for the Services.

3.  Fees; Payment; Taxes.

3.1    Fees and Payment.   Customer shall pay Tagible the fees set forth in the applicable Order (“Fees”).  Customer shall pay all fees using a credit number which shall be provided to Tagible upon the Effective Date of this Agreement. Customer authorizes Tagible to automatically renew Customer’s subscription on a monthly basis and charge the then-current Fees to the credit card associated with Tagible’s account unless either Customer or Tagible terminate this Agreement in accordance with Section 6.2.  Monthly Subscription Fees shall be paid in advance. Except as otherwise specified in an Order, in the event Customer requests that Tagible personnel travel to Customer’s facilities in connection with the performance of Services, Customer will reimburse Tagible for all reasonable travel and travel related expenses incurred in connection therewith in accordance with the payment terms set forth herein.  Tagible reserves the right (in addition to any other rights or remedies Tagible may have) to suspend Customer’s access to the Tagible System if any credit card associated with Customer’s account is invalid or unacceptable and Fees owed to Tagible become more than thirty (30) days overdue until such amounts are paid in full.  Tagible may charge interest for all outstanding balances at a rate equal to the lesser of one and one half percent (1½%) per month or the maximum rate permitted by applicable law, from the due date until paid.  All Fees shall be paid in United States Dollars.

3.2   Taxes.   The Fees are exclusive of, and Customer shall pay, any and all taxes, other than taxes based solely on Tagible’s income, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes.

4.  Support. Tagible shall have no obligation to provide support to Customer in the event Customer disassembles or tampers with the Software for any reason without prior written approval from Tagible.  Any support services performed by Tagible due to changes by Customer to the Customer Environment that alter or impair System function will be chargeable at Tagible’s then-current service rates plus travel, telephone and other reasonable expenses in addition to payment by Customer of all other Fees.

5.  Other Obligations.

5.1   Disabling Code; Virus Detection.  Other than any account deactivation features that Tagible may use in connection with account termination or suspension, the Services are free from any disabling device or code. Customer will not upload any document to the System that contains any viruses, worms, trojans, or malware, or that comprise copyright violations during its use of the Services.

5.2   Third-Party Software.  Customer acknowledges that the Services may comprise a combination of software developed by Tagible and third-party licensors.  For any third-party software that Tagible embeds in the System, if any, Tagible passes through to Customer, solely to the extent permissible, any end-user warranties and indemnification rights that Tagible obtains from said third-party licensor.

5.3   Prohibitions. Customer agrees to not do any of the following:

(a)   Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service;

(b)   Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Tagible or any of Tagible’s providers or any other third party to protect the Service; or

(c)    Access, tamper with, or use non-public areas of the Service, Tagible’s computer systems, or the technical delivery systems of Tagible’s providers.

6.  Term and Termination.

6.1   Term.  The term of this Agreement shall commence on the Effective Date and continue for successive monthly periods until terminated as provided in Section 6.2 (the “Term”).  Each successive one-month period shall be a “Renewal Term.”  Tagible reserves the right to increase or modify the Fees applicable to any Renewal Term upon at least forty-five (45) days written notice to Customer.

6.2   Termination.  Either party may terminate the Agreement immediately if the other party breaches any material provision of the Agreement and such breach is not capable of being cured; however, either party may terminate the Agreement for any reason upon 30 days written notice to the other party.

6.3  Effects of Termination.  Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Tagible under this Agreement will be immediately due and payable; (b) all rights granted to Customer in this Agreement to access and use (other than those granted under Section 7.2) will immediately cease to exist; (c) Customer must promptly discontinue all use of the System; (d) at Customer’s request, Tagible will return to Customer or destroy all copies of Customer’s Confidential Information (as defined below) in Tagible’s possession or control; provided, however, Tagible may retain one copy of all of Customer’s Confidential Information for archival purposes only. Sections 1.5, 2, 3, 6.3, 7, 8, 9, 10, 11 and 12 together with any accrued payment obligations, will survive expiration or termination of the Agreement for any reason.

7.  Ownership.

7.1   Tagible.  As between the parties, the Software, System and Documentation, and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of Tagible and its suppliers.  Tagible and its suppliers reserve all rights in and to the System not expressly granted to Customer in this Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise.  Without limiting the generality of the foregoing:  (a) any configuration or deployment of the System for Customer under this Agreement will not affect or diminish Tagible’s rights, title and interest in and to the System; and (b) if Customer provides or communicates to Tagible any ideas, information, new features, functionality or performance suggestions related to the System and/or the Services (“Suggestions”), Tagible may use and incorporate such Suggestions into the System and/or Services as applicable.  Customer acknowledges that the intellectual property created by Tagible’s incorporation of such Suggestions into the Tagible System and/or Services will be the sole and exclusive property of Tagible and all such Suggestions will be free from any confidentiality restrictions that might otherwise be imposed upon Tagible pursuant to the terms of this Agreement.  In addition, Tagible may use information provided by Customer about the Services, System or Software for the purpose of improving, maintaining and supporting the System and Services and otherwise providing the Services to Customer under this Agreement.  Customer recognizes that Tagible may provide similar services to other persons or entities from time to time, and this Agreement shall not prevent Tagible from using any know-how, ideas, information, concepts, statistical or pattern analyses (including statistical, natural language, or rules-based analysis of word patterns, provided that any such analysis must not include any information that would identify Customer, its clients, or any matter-specific information pertaining to work that Customer performs for its clients),  and understanding that may be obtained and/or retained by Tagible and its personnel as a result of performing Services for Customer under this Agreement, provided that Tagible complies with its confidentiality obligations set forth in this Agreement.

7.2   Non-Exclusive License to Tagible Templates.  From time to time and pursuant to an Order and upon the terms set forth in such Order, Tagible may provide and license to Customer, on a non-exclusive basis, pre-made Tagible Templates.  As between the parties, the Tagible Templates and all modifications, updates, and improvements thereto, and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of Tagible. Customer recognizes that Tagible may provide other Tagible customers access to such Tagible Templates and that Customer shall not have any exclusive right to access or use such Tagible Templates.

7.3  Customer.  As between the parties and subject to Section 7.4, the Tags created and applied to particular videos by Customer or by Tagible pursuant to an Order (collectively, “Customer Tags”) and all other documents and information that Customer provides to Tagible under this Agreement and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of Customer; provided, however, during or following the Term of this Agreement, Tagible shall have no obligation to deliver to Customer any files or data collected or created by Tagible that includes any Customer Tags other than as required to provide the Service to the Customer.

7.4   Customer Tag License Grant.  Subject to the terms and conditions of this Agreement, Customer hereby grants to Tagible a perpetual, non-exclusive, assignable, sublicenseable, and worldwide license to use and modify Customer’s Customer Tags and all modifications, updates, and improvements thereto for any purpose, including, but not limited to, creating and selling Tagible Templates to other Tagible customers that include or otherwise incorporate such Customer Tags.

8.  Confidentiality.

8.1   Definitions.  “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of this Agreement.  Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself.  The Software, System and Documentation shall be considered Tagible’s Confidential Information, notwithstanding any failure to mark or identify it as such.

8.2   Protection of Information.  Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.  Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

8.3  Exceptions.  Recipient’s obligations under Section 8.2 with respect to any Confidential Information of Discloser will terminate if such information:  (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information.  In addition, Recipient will be allowed to disclose Confidential Information of Discloser to the extent that such disclosure is (i) approved in writing by Discloser, or (ii) required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. For further assurance, Customer Tags created by Customer is not Confidential Information of Customer.

9.  Warranty and Disclaimer.

9.1   Performance.  During the Term, Tagible warrants that the Services, when used as permitted by Tagible and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects.  Tagible does not warrant the Customer’s use of the Tagible Service will be error-free or uninterrupted, and as set forth in Section 2.2, Tagible does not warrant the Customer’s use of the YouTube Services will be error-free or uninterrupted.  Tagible will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, correct any reproducible Error in the Service reported to Tagible by Customer in writing during the Term as set forth in Section 4.

9.2   Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY AND ALL SERVICES PROVIDED BY TAGIBLE TO CUSTOMER PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND CUSTOMER’S USE OF THE TAGIBLE SYSTEM IS ENTIRELY AT ITS OWN RISK.  TAGIBLE, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SERVICES AND TAGIBLE SYSTEM, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY WILL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.  THE PARTIES EXPRESSLY AGREE THAT TAGIBLE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OR INTERRUPTION OF CUSTOMER’S OR ANY THIRD PARTY’S APPLICATIONS OR NETWORK, INCLUDING, BUT NOT LIMITED TO, THE APPLICATIONS, NETWORK, AND SERVICES PROVIDED BY YOUTUBE, LLC AT THE DOMAIN WWW.YOUTUBE.COM AND ITS SUBPAGES.

10.  Indemnification.

10.1   Indemnification by Tagible.

(a)   Tagible will defend at its own expense any claim or action brought by a third party against Customer to the extent the claim or action is based upon an allegation that the Software or Service infringes any patents or any copyrights or misappropriates any trade secrets of a third party, and Tagible will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such action or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on Customer (i) notifying Tagible promptly in writing of such action, (ii) giving Tagible sole control of the defense thereof and any related settlement negotiations and (iii) cooperating and, at Tagible’s request and expense, assisting in such defense.

(b)   Injunction.  If the use of the Software becomes, or in Tagible’s opinion is likely to be, enjoined, Tagible will, at its option and expense either, (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing or, if neither subsections (i) or (ii) are commercially reasonable, (iii) suspend access to the System, terminate this Agreement upon written notice to Customer and refund to Customer a pro-rated amount of the Fees paid for Services not provided for the remainder of the Term.

(c)   Exclusions.  Notwithstanding the foregoing, Tagible will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim that is based upon (i) any use of the Software not in accordance with this Agreement, (ii) any use of the Software in combination with products, equipment, software or data not supplied by Tagible, except as expressly permitted in the Order; (iii) any use of any release of the Software other than the most current release made available to Customer; (iv) any modification of the Software by any person other than Tagible or its authorized agents or subcontractors; (v) the use of or access to YouTube Content on or through Customer’s website; and (vi) Customer’s or its Users’ or Guests’ breach of the YouTube Policies.  This Section 10.1 states Tagible’s entire liability and Customer’s exclusive remedy for any claims of infringement.

10.2   Indemnification by Customer.  Customer will defend at its own expense any claim or action brought by a third party against Tagible to the extent the claim or action is based upon an allegation that any documents or other information, including YouTube Content, provided by Customer to Tagible or that Customer uses in connection with the Services infringe any patents or any copyrights or misappropriates any trade secrets of a third party, and Customer will pay those costs and damages finally awarded against Tagible in any such action that are specifically attributable to such action or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on Tagible (i) notifying Customer promptly in writing of such action, (ii) giving Customer sole control of the defense thereof and any related settlement negotiations (provided that Customer may not settle or defend any claim unless it unconditionally releases Tagible of all liability) and (iii) cooperating and, at Customer’s request and expense, assisting in such defense.

11.  Limitation of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES, SYSTEM OR THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TAGIBLE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES AND SYSTEM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.  CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT TAGIBLE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

12.  General.

12.1  Compliance with Laws.  Each party agrees to comply with all laws, regulations, rules, ordinances and orders applicable to its rights and obligations under this Agreement.  Customer will strictly comply with all requirements of the U.S. export control laws and regulations with respect to the use of the Tagible System and the Services.

12.2 Assignment.  Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under the Agreement (including the license rights granted to Customer) to any third party without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed.  Notwithstanding the foregoing, each party may assign this Agreement, without consent, to any successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Any attempted assignment or transfer in violation of the foregoing will be null and void.

12.3  Force Majeure.  Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.

12.4  Publicity.  Upon Customer’s prior written consent (which shall not be unreasonably withheld), Tagible may (a) issue a press release indicating that the parties have entered into this Agreement and (b) identify Customer as a customer of Tagible in appropriate promotional materials.

12.5   Notices.  All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic mail, facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in this Agreement or on the applicable Order, and will be effective upon receipt or when delivery is refused.  Either party may change its address by giving notice of the new address to the other party.

12.6  Governing Law and Venue.  This Agreement will be governed by and interpreted in accordance with the laws of the Colorado, without reference to its choice of laws rules.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

12.7  Remedies.  Except as provided in Sections 9 and 10, the parties’ rights and remedies under the Agreement are cumulative.  Customer acknowledges that the Tagible System contains valuable trade secrets and proprietary information of Tagible.  The parties agree that any actual or threatened breach of Sections 7 or 8 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to all other available remedies.  If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

12.8  Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.9  Severability.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

12.10  Construction.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

12.11  Entire Agreement.  This Agreement (including all exhibits and attachments) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  The terms of any purchase Order or similar document submitted by Customer to Tagible will have no effect until accepted by Tagible.

 

Exhibit A

Initial Customer Order

 

This order (the “Order”) will serve to confirm Customer’s order to Tagible, LLC (“Tagible”) for the Services at the prices set forth below under the terms and conditions attached to this Order and by this reference incorporated into the Master Subscription and Services Agreement entered into between the parties (the “Agreement”).

1.   Initial Term: Month to month.

2.  Description of Services to be provided by Tagible:

2.1   Services Provided:  Tagible helps Brands Collect, Organize and Share video content for marketing purposes.  The services included with Tagible include professional content curation, video importing and  syndication to clients site, optimization of videos for eCommerce conversions, organization of videos into channels, embedding of channels into clients site, and sharing of video channels through social media sites and email.

3.  Training: At no additional cost, Tagible will provide Customer, at a mutually convenient time, provide setup and web-training sessions for all Users

4.  Subscription Fee:   Customer will pay the applicable Customer Fees.

5.  Payment Terms:  In accordance with Section 3.1, Customer shall pay all Fees using a credit number which shall be provided to Tagible upon the Effective Date of the Agreement. Customer authorizes Tagible to automatically renew Customer’s subscription on a monthly basis and charge the then-current Fees to the credit card associated with Tagible’s account unless either Customer or Tagible terminate this Agreement in accordance with Section 6.2. Monthly Subscription Fees shall be paid in advance.

6. Minimum Customer Requirements:  the system by which the Customer accesses the Tagible System must be comprised of one of each of the following, configured in accordance with the Documentation:

(a)   Internet Browser: Internet Explorer 9 or above, Google Chrome, Firefox, Safari or other “modern” web browsers.

(b)   Connectivity:  Broadband (at least 2MB/sec upload and download) required.

(c)   If the Customer Environment contains software components that modify or interfere with the functionality of the above, Customer agrees to use commercially reasonable efforts to both cooperate with Tagible and to induce its third party vendors to cooperate with Tagible to allow Tagible to operate within that Customer Environment.

 

Appendix A

Defined Terms

 

Customer Environment” means all connectivity equipment, internet and network connections, hardware, software, and other equipment and configurations as may be necessary for its Users and Guests to connect to and obtain access to the System, including, as examples, those items listed as Minimum Customer Requirements on the attached Order.

Customer Tags” is defined in Section 7.3.

Customer’s Website” means the Customer’s website and its various subdomains.

Discloser” is defined in Section 8.1.

Documentation” means Tagible’s then-standard Customer set-up instructions and any account guide.

Error” means any reproducible error or defect in the Software that causes the Tagible System not to operate substantially in accordance with the Documentation.

Error Corrections” is defined in Section Error! Reference source not found..

Fees” is defined in Section 3.1.

Guests” any individual guest or invitee user other than a User who accesses or uses the Services through Customer’s website.

Order” means the initial Services order attached hereto as Exhibit A and incorporated herein, and such additional Services orders as may be mutually agreed to in a writing signed by both parties from time to time under this Agreement.

Recipient” is defined in Section 8.1.

Renewal Term” is defined in Section 6.1.

Service Delivery Date” means the date on which Tagible provides Customer with the account names, passwords, and Documentation listed on the Order.

Services” means the web-based YouTube video organization and tagging System described in this Agreement all related Services provided by Tagible pursuant to this Agreement, including Services made available by Tagible from time to time and agreed to between Customer and Tagible pursuant to an Order.

Software” means the Tagible video organization and tagging software hosted by Tagible, or by its third-party hosting provider, that is used to provide the Services. Software includes all Tagible Templates.

Suggestions” is defined in Section 7.1.

System” means Tagible’s web-based YouTube video organization and tagging system used to deliver the Services to Customer in accordance with this Agreement and that may be comprised of the Software and other hardware and technology hosted by Tagible or by its third-party hosting provider.

Tagible Template” means each set Tags that Tagible creates and converts into its proprietary, automation-enabled format and makes generally available to some or all of its customers.

“Tagible Terms” is defined in Section 1.3

Tags” is defined in Section 2.1.

Terms” is defined in Section 6.1.

Users” means those of Customer’s employees and contractors employed by Customer to manage the Customer’s use of the Services.

YouTube” means YouTube, LLC.

YouTube Content” means all video, text, and other content made available to Customer and its Users and Guests through the YouTube Services.

YouTube Policies” is defined in Section 1.3.

YouTube Services” means any all services made available to Customer by YouTube.