1. Parties Agree that they will not post anything negative about Either Party anywhere online, offline, or make any negative comments in person or otherwise.
1. Default and Remedies.
(a) Bankruptcy Default. A Party shall be in default of this Agreement upon the occurrence of any of the following: (i) if the Party applies for adjudication in bankruptcy or suspension of payments; (ii) if the Party is declared bankrupt or granted a suspension of payments; (iii) if an attachment is made on a substantial part of the Party's assets and is not released or discharged within thirty (30) days; or (iv) if the Party enters into an arrangement with its creditors for the settlement of its debts, whether or not pursuant to a statutory scheme.
(b) Default by BMD Publishing. BMD Publishing shall be in default of this Agreement if BMD Publishing violates any of the material terms of this Agreement or the Operating Agreement and fails to substantially cure such violations within thirty (30) days of the date of receipt of written notice thereof from CLIENT.
(c) Default by CLIENT. CLIENT shall be in default of this Agreement if CLIENT violates any of the material terms of this Agreement and, in the event of a monetary default, CLIENT fails to cure such default within ten (10) days of the date of receipt of written notice thereof from BMD Publishing, and in the event of a non-monetary default, CLIENT fails to cure such default within thirty (30) days of the date of receipt of written notice thereof from BMD Publishing.
(d) Rights Upon Default. If a default is not cured within the applicable time period, then the Party not in default shall have the non-exclusive option to: (i) immediately terminate this Agreement; (ii) suspend such non-defaulting Party’s performance under this Agreement; (iii) pursue any other remedy that such Party may have at law or equity; or (iv) continue under the terms of this Agreement without waiving any rights to later pursue any remedy at law or equity.
2. Work for Hire.
(a) All works of authorship and deliverables, including without limitation websites (and underlying code), website IPs and the Marketing Platform, which BMD Publishing creates, develops and/or contributes to (whether alone or jointly with others) during the course of BMD Publishing’s performance of Services for CLIENT shall hereinafter be referred to as the “Work Product.”
(b) Client owns all work product created by BMD Publishing LLC each month. The Parties acknowledge and agree that CLIENT owns, and shall own, all right, title and interest in and to, the Work Product and all intellectual property and proprietary rights therein and/or related to such Work Product. Additionally, the Parties acknowledge and agree that it is their mutual intention that, to the extent that the Work Product, is comprised, in whole or in part, of copyrighted or copyrightable components or elements under the United States Copyright Act of 1976, as amended (the “Act”), that such Work Product constitute work-made-for-hire under the Act.
(c) To the extent that the Work Product, any component or element thereof, or any of the other deliverables, are deemed not to constitute work-made-for-hire under the Act, then BMD Publishing hereby assigns to CLIENT, and CLIENT accepts from BMD Publishing, the assignment of all of BMD Publishing’s worldwide right, title and interest in and to the Work Product, any other deliverables, and all intellectual property and proprietary rights therein and/or related to the Work Product.
3. Confidentiality. BMD Publishing agrees that during the Term it will have access to the Confidential Information of CLIENT, and agrees that it will not, at any time during or after the Term, disclose or use any such Confidential Information unless authorized by this Agreement or unless it first obtains the written consent of CLIENT. BMD Publishing agrees to take all reasonable measures to protect the confidentiality of and avoid disclosure or use of such Confidential Information in order to prevent such Confidential Information from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean the terms and conditions of this Agreement and the Operating Agreement and any and all information, knowledge, technical data, trade secrets, intellectual property, inventions, know-how, business plans, customers, pricing, marketing and sales information, statistics, methods, software and source code that is disclosed to or otherwise obtained by the BMD Publishing in connection with this Agreement or pursuant to the Operating Agreement. It is expressly acknowledged and agreed that all results, contacts, information and data developed, created or identified in connection with the use of the Marketing Platform shall be owned by CLIENT and shall constitute Confidential Information subject to this Section 10.
4. No Agency. None of the provisions of this Agreement shall be deemed to constitute a partnership, joint venture, agency, franchise or any other such relationship between the Parties hereto, and neither Party shall have any authority to bind the other in any manner, except as provided in this Agreement. Neither Party shall have or hold itself out as having any right, authority or agency to act on behalf of the other Party in any capacity or in any manner, except as provided in this Agreement, except as set forth in the Proposal or as may be agreed upon by the Parties from time-to-time such as, but not limited to, in connection with media-buying activities under the Marketing Platform.
5. Indemnity. Each Party agrees to protect, defend (at the indemnifying Party’s expense and by counsel satisfactory to the other Party), indemnify, and save and hold harmless the other Party, its affiliates and each of their respective officers, directors, shareholders, employees, agents, successors in interest, representatives, agents, assigns, and contractors (collectively, the “Indemnitees”) from and against all direct or indirect costs, expenses, damages, losses, obligations, lawsuits, claims, or liabilities of any kind or nature (whether or not such claim is ultimately defeated) (collectively, “Losses”), including in each instance, but not limited to, all costs and expenses of investigating and defending any claim at any time arising and any final judgments, compromises, settlements, and court costs and attorneys’ fees, whether foreseen or unforeseen (including all such expenses, court costs, and attorneys’ fees in the enforcement of its rights hereunder) incurred by the Indemnitees, or any of them, in connection with or arising out of or resulting from or relating to or incident to:
(a) any breach of any of the representations or warranties of a Party contained in this Agreement;
(b) any breach of any covenant or other obligation of a Party contained in this Agreement; and
(c) any negligent act or omission or willful misconduct by a Party or by such Party’s agents, employees or other representatives in connection with this Agreement.
Notwithstanding the foregoing, no Party shall be required to indemnify any other Party (or other Indemnitee) under this Section to the extent an Indemnitee’s negligent action or omission contributed to such claim or loss.
The foregoing indemnification obligation will survive the expiration or termination of this Agreement by either party for any reason.
Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given when (a) delivered personally to that Party, (b) sent by facsimile transmission (with electronic “answerback” confirmation of successful transmission) to that Party at the facsimile number for that Party set forth below, (c) on the fifth (5th) calendar day after being mailed by certified mail (postage prepaid and return receipt requested) to that Party at the address for that Party set forth below, or (d) on the day delivered by Federal Express or any similar express delivery service for delivery to that Party at that address.
If to BMD Publishing:
BMD Publishing, LLC
5888 Main Street Suite 200
Williamsville, NY 14221
Attn: Seth Greene
Any Party may change its address for notices under this Agreement at any time by giving the other Party notice of such change delivered in conformity with this Section.
1. Entire Agreement; Amendments; Waivers. This Agreement and the Exhibits hereto set forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and thereof and supersede all prior or contemporaneous agreements and understandings relating to such subject matter. This Agreement may be amended only by a written agreement executed by the Parties. No provision of this Agreement may be waived except by a written document executed by the Party entitled to the benefits of the provision.
2. Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by either of the Parties without the prior written consent of the other Party.
3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, notwithstanding any conflict of law provision to the contrary.
4. Submission to Jurisdiction. Each Parties submits to the jurisdiction of any state or federal court sitting in Erie County, New York, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each Party also agrees not to bring any action or proceeding arising out of or relating to this Agreement (exclusive of any action seeking equitable remedies) in any other court. Each Party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto. Each Party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or in equity
5. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AFTER CAREFUL CONSIDERATION AND AN OPPORTUNITY TO SEEK LEGAL ADVICE, WAIVE THEIR RIGHT TO HAVE A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY OF THE PROVISIONS OF OR MATTERS RELATED TO THIS AGREEMENT.
6. Attorney’s Fees and Expenses. In the event either Party initiates action to enforce its rights hereunder, the substantially prevailing Party in such action shall recover from the substantially non-prevailing Party its court costs, including taxed and untaxed costs, and reasonable attorneys’ fees, whether suit be brought or not, and includes, without limitation, expenses incurred in any appellate or bankruptcy proceeding (including reasonable legal and investigative expenses) (“Expenses”). All such Expenses shall bear interest at the highest rate allowable under the laws of the State of New York from the date the substantially prevailing Party pays such Expenses until the date the substantially non-prevailing Party repays such Expenses. Expenses incurred in enforcing this Section shall be covered by this Section.
7. Cooperation. Each Party will in good faith cooperate with the other Party, and disclose to the other Party such information and documents, as is reasonably necessary to facilitate the development of the Marketing Platform and to have the Services performed as set forth herein.
8. Severability. If any provision of this Agreement or application to any Party or circumstances shall be determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to such Party or circumstances, other than as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law.
9. Counterparts; Electronic Transmissions. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile or electronic transmissions of executed signature pages are agreed and deemed by all Parties to constitute originals fully enforceable and binding upon the Parties.
