These Service Terms and Conditions (these “Terms”) govern the Subscription Plan referencing these Terms and made between ACBM, LLC, a Delaware limited liability company, D/B/A IRONMARKETS (“IM”) and the Client. By signing the contracted Subscription Plan, the parties accept the terms and conditions of these Terms and agree to be bound by them as they relate to an IRONPROS TITANIUM and/or 4PILLARS subscription service. The parties agree as follows:
a. “IM Materials” means any Content, inventions, improvements, methods, formulas, designs, or information, regardless of state of completion, developed or acquired, or otherwise owned or controlled, by IM, either prior to the Subscription Plan Effective Date or independently of the Services.
b. “Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) in connection with this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. IM’s Confidential Information includes all non-public information regarding the Fees and other terms and conditions set forth in this Agreement.
c. “Content” means all content, information, and materials, including, all text (including all advertisement headlines, primary text, descriptions, and other copy that accompanies an advertisement), images, illustrations, animations, photos, videos, audio, designs, layouts, graphics, artwork, taglines, trademarks, logos, hashtags, information, data and any other creative assets and works of authorship.
d. “Client” means the Client set forth in the Subscription Plan.
e. “Client Materials” means all Content provided to IM by, or on behalf of, Client in connection with the Services, which may include embodiments of Client’s trademarks, service marks, and other source identifiers and/or Client-owned copy or images.
f. “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all registrations and applications for any of the foregoing.
g. “Subscription Plan” means the subscription plan set forth in the ordering document these Terms are attached to or that reference these Terms that describes the Services to be provided under this Agreement.
h. “Work Product” means all Content created by IM (whether solely or in collaboration with others) on behalf of Client, and provided to Client, in connection with the Services. For the avoidance of doubt, Work Product does not include (1) IM Materials, (2) IRONPROS, ForConstructionPros, or other IM site content, or (3) generally applicable knowledge, methods, processes, or other ideas gained, created, or generated by IM in connection with the Services.
a. IM Obligations. IM will use commercially reasonable efforts to provide the services described in the Subscription Plan (“Services”) to Client in accordance with these Terms. IM may use subcontractors or other third parties to perform its obligations under this Agreement, but IM will remain responsible for all such obligations.
b. Client Obligations. Client will (i) cooperate with IM in all matters relating to the Services; (ii) respond promptly to any IM request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for IM to perform its obligations; (iii) provide such Client Materials as IM may reasonably request to provide the Services; and (iv) ensure its employees, agents, and contractors do not encourage, allow, or engage in any discriminatory, harassing, threatening, violent, or otherwise offensive, tortious, or criminal behavior towards or against IM’s employees, agents, or contractors. If IM’s performance under this Agreement is prevented or delayed by any failure of Client to comply with its obligations under this Section, or by any other act or omission of Client or its agents, subcontractors, consultants, or employees, IM shall not be deemed in breach of this Agreement or otherwise liable to Client for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising from such prevention or delay.
3. Ownership and License.
a. Work Product Ownership. Client is the sole and exclusive owner of all marketing services related or custom Work Product if created specifically for the Client directly in connection with the Services, and IM hereby irrevocably assigns to Client all of IM’s right, title, and interest in and to all Work Product, including all Intellectual Property Rights therein or arising therefrom.
b. IM Materials License and Ownership. IM hereby grants Client a worldwide, non-exclusive, fully paid, sublicensable, perpetual license to transfer, display, perform, reproduce, and distribute unmodified IM Materials to the extent such IM Materials are incorporated in (or necessary for the use of) any Work Product, solely in connection with Client’s internal business purposes. Subject to the foregoing limited license, Client does not have any rights in or to the IM Materials. IM owns the IM Materials, including all Intellectual Property Rights therein. No ownership rights in the IM Materials are transferred to Client by this Agreement.
c. Client Materials; License and Ownership. Client hereby grants IM a worldwide, non-exclusive, royalty-free, fully paid, sublicensable (to IM’s third-party service providers) license to transfer (including through digital transmission), display, perform, reproduce, modify, create derivative works of, and otherwise use Client Materials, in whole or in part, solely as necessary for IM to provide the Services to Client, including for the avoidance of doubt, in connection with the creation of Work Product. Notwithstanding the foregoing, IM will have no obligation to remove existing Content from IM’s marketing channels, even if it contains Client Materials. Subject to the foregoing limited license, IM does not have any rights to the Client Materials. Client is the sole and exclusive owner of Client Materials, including all Intellectual Property Rights therein. No ownership rights in the Client Materials are transferred to IM by this Agreement.
d. Feedback. If Client gives IM feedback, comments, or suggestions concerning the Services or any Work Product (collectively, “Feedback”), Client hereby grants IM a non-exclusive, worldwide, transferable, sub-licensable, royalty free license to use and exploit such Feedback for any legal purpose without payment, attribution, or restriction. Feedback is provided “AS-IS.”
Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use any Confidential Information except to perform its obligations or exercise its rights in connection with this Agreement. Neither Recipient may divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations or exercise its rights under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 4, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under applicable law), or any Confidential Information that is, and to the extent, required to be disclosed by applicable law.
5. Fees and Payment.
a. Fees and Payment. Except as set forth in Section 6.D, all amounts payable to IM in connection with this Agreement, including, without limitation, those set forth in the Subscription Plan (“Fees”) are non-refundable. Unless stated otherwise in the Subscription Plan, all Fees are payable annually in advance, and due within 30 days of Client’s receipt of IM’s invoice unless otherwise noted in the Fees & Payment Terms section of the signed contract. If Client believes that IM has billed Client incorrectly, Client must contact IM no later than 30 days after the
closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Client hereby waives any right it may have under this Agreement, at equity, or in law to dispute Fees after such period. Unless otherwise specified in the Subscription Plan, full payment is due upon receipt of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by applicable law, whichever is lower, plus all expenses of collection (including reasonable attorneys’ fees). Client will pay all Fees in U.S. Dollars. Without limiting any other remedy available herein, at law, or in equity, IM may stop provision of any or all of the Services if the Client fails to pay overdue Fees within 10 days from IM’s notice to the Client of outstanding payment.
b. Taxes. Other than federal and state net income taxes imposed on IM, Client will bear all taxes, duties, and other governmental charges relating to the Fees and Services.
6. Term and Termination.
a. Term. This Agreement shall be effective upon the Effective Date and, unless terminated earlier as set forth in this Agreement, shall remain in force for one (1) year (“Initial Term”) and will automatically renew for successive one-year periods unless, prior to thirty (30) days before the end of a term, either party gives written notice to the other that it chooses not to extend the Agreement, in which case the Agreement will expire on the last day of the current term (together with the Initial Term, the “Term”). Upon automatic renewal, Subscription Plan Fees are subject to an annual increase of up to 7% and will be communicated to the Client in the form of an insertion order.
b. Termination for Breach or Insolvency. Either party may terminate this Agreement effective upon written notice to the other party, if the other party materially breaches these Terms or the Subscription Plan and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. IM may terminate or suspend this Agreement or any part of it immediately upon written notice to Client without a cure period if Client breaches (1) any of the terms of this Agreement relating to IM’s Intellectual Property Rights or IM’s Confidential Information, or (2) Section 2.B(1)(iv). IM may terminate this Agreement, effective immediately upon written notice, if Client files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
c. Effect of Termination. Upon the expiration or termination of this Agreement all rights and licenses granted by IM to Client under this Agreement will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
d. Post-Termination Obligations. If Client terminates this Agreement for IM’s material breach, IM will pay Client a pro rata refund of pre-paid Fees for services not provided. If this Agreement expires or is terminated for any other reason IM will not refund Client any Fees paid in advance of such expiration or termination. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Ownership and License), 4 (Confidentiality), 5 (Fees and Payment), 6.C (Effect of Termination), 6.D (Post-Termination Obligations), 7.D (Disclaimer), 7.E (No Guarantee of a Specific Result), 8 (Indemnification), 9 (Limitations of Liability), 10 (Non-Solicitation), 11 (Arbitration), and 12 (Miscellaneous) of these Terms.
7. Warranties and Disclaimer.
a. Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; (3) the execution and delivery of this Agreement by the executing party do not violate applicable law or the terms of any other agreement to which it is a party or by which it is otherwise bound; and (4) it will comply with all applicable law in connection with exercising its rights or performing its obligations under this Agreement.
b. IM Warranty. IM represents and warrants to Client that IM will perform the Services in a good and workmanlike manner. As Client’s sole and exclusive remedy, and IM’s sole and exclusive liability, for a breach of the foregoing warranties, IM will reperform the applicable Services, at no additional cost to Client; provided, Client must notify IM of any non-compliant Services within 30 days of Client’s initial receipt thereof.
c. Client Warranty. Client represents and warrants to IM that Client has the necessary rights to authorize IM to use the Client Materials in accordance with this Agreement, and such use by IM of Client Materials will not infringe, dilute, misappropriate, or otherwise violate any third-party right, including any Intellectual Property Right or personality or privacy right. D. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 7 (WARRANTIES AND DISCLAIMER), IM MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT
TO THE SERVICES OR WORK PRODUCT AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS.” IM DOES NOT WARRANT THAT THE SERVICES OR WORK PRODUCT WILL SATISFY CLIENT’S REQUIREMENTS, OR ARE WITHOUT DEFECT OR ERROR.
e. No Guarantee of a Specific Result. Regardless of any perceived representation to the contrary, IM in no way guarantees a specific result for Client. It is understood and agreed to that IM has no direct control over user engagement or performance on advertising platforms.
f. Content Regulation Compliance. Without limiting Section 7.D, and notwithstanding anything else to the contrary contained herein or otherwise, Client agrees and acknowledges that Client is solely responsible for ensuring Work Product is truthful, evidence-based, and not deceptive or unfair.
a. By IM.
(1) Defense. At Client’s option and request, IM will defend Client and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Client Indemnified Parties”) from any third-party claim, proceeding, suit, action, or inquiry based an allegation that Client’s exploitation of any Work Product in accordance with this Agreement infringes any registered United States copyright (a “IM Indemnifiable Claim”). If Client requests IM to defend it from any IM Indemnifiable Claim, Client will: (i) give IM prompt written notice of the IM Indemnifiable Claim; (ii) grant IM full and complete control over the defense and settlement of the IM Indemnifiable Claim; (iii) provide assistance in connection with the defense and settlement of the IM Indemnifiable Claim as IM may reasonably request; and (iv) comply with any settlement or court order made in connection with the IM Indemnifiable Claim. Notwithstanding the previous sentence, IM will not enter into any settlement that involves an admission of guilt or liability of Client without Client’s prior written consent. Client may participate in the defense of a IM Indemnifiable Claim at its own expense and with counsel of its own choosing.
(2) Indemnification. IM will indemnify the Client Indemnified Parties from and pay: (i) all damages, costs, fines, judgements, expenses, and attorneys’ fees reasonably incurred by Client Indemnified Parties in connection with a IM Indemnifiable Claim; and (ii) all amounts that IM agrees to pay to any third party to settle any IM Indemnifiable Claim.
b. By Client.
(1) Defense. At IM’s option and request, Client will defend IM and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “IM Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on Client’s breach of Section 7 ( a “Client Indemnifiable Claim”). If IM requests Client to defend it from any Client Indemnifiable Claim, IM will: (i) give Client prompt written notice of the Client Indemnifiable Claim; (ii) grant Client full and complete control over the defense and settlement of the Client Indemnifiable Claim; (iii) provide assistance in connection with the defense and settlement of the Client Indemnifiable Claim as Client may reasonably request; and (iv) comply with any settlement or court order made in connection with the Client Indemnifiable Claim. Notwithstanding the previous sentence, Client will not enter into any settlement that involves an admission of guilt or liability of IM without IM’s prior written consent. IM may participate in the defense of a Client Indemnifiable Claim at its own expense and with counsel of its own choosing.
(2) Indemnification. Client will indemnify the IM Indemnified Parties from and pay: (i) all damages, costs, fines, judgements, expenses, and attorneys’ fees reasonably incurred by IM Indemnified Parties in any Client Indemnifiable Claim); and (ii) all amounts that Client agrees to pay to any third party to settle any Client Indemnifiable Claim.
c. IP Infringement.
IM has no liability or obligation with respect to claims relating to third party Intellectual Property Rights to the extent claims arise from (1) use of Work Product in combination with other footage, images, music, or other Content not provided to Client by IM in connection with the Services, (2) designs, requirements, or other Content required by Client, (3) Client Materials, (4) Client’s (or its vendor’s or service provider’s) continued exploitation of Work Product after being informed such Work Product may infringe third party Intellectual Property Rights, or (5) any modification of Work Product not made or authorized in writing by IM.
Without limiting anything else contained herein, Client hereby knowingly, irrevocably, forever, and fully discharges, waives, acquits, and releases the IM Indemnified Parties from any and all claims, causes of action, demands, liabilities, losses, and costs of every kind and nature whatsoever (including arising out of IM’s negligence) which Client may have at any time related to or arising from any action or inquiry brought or threatened by a governmental agency against Client based on Client’s responsibilities set forth in Section 7.F, other than to the extent arising from IM’s willful misconduct.
9. Limitations of Liability.
a. EXCLUSION OF DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
b. DAMAGES CAP. EACH PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO IM, AND WITH RESPECT TO ANY CLAIM WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO IM DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
c. Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 9 will apply to Client solely to the extent permitted by applicable law. CLIENT AGREES THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 9 WILL APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IM has expended considerable time and resources in recruiting and training its employees, and the loss of any such employee would constitute the loss of a valuable asset. If during the Term or for a period of 6 months thereafter, Client hires or engages (on any basis, including as a full-time, part-time or temporary employee, or an independent contractor, and regardless of whether Client solicited such individual or such individual initiated the contact) an IM employee or former employee who is involved (or has been involved within the previous one-year period) in providing Services to Client, then Client agrees to immediately pay IM a recruiting/placement fee equal to $25,000 for each such employee. The parties agree that this amount is reasonable in light of the difficulty of ascertaining IM’s actual damages occasioned by such breach and that this fee will in no way be construed as a penalty.
Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in Milwaukee, Wisconsin. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an Intellectual Property Rights infringement claim.
a. Publicity. IM may publicly list Client as a customer of IM and use Client’s trademark, trade name, and logo for marketing or promotional purposes and in other communications with existing or potential IM customers, resellers, or investors.
b. Governing Law. This Agreement is governed by Wisconsin law without reference to its conflict of laws principles. Subject to Section 11, all claims arising under this Agreement will be litigated exclusively in the federal or state courts located in Milwaukee County, Milwaukee. The parties submit to the jurisdiction in those courts.
c. Injunctive Relief. If either party breaches Section 3 or 4, the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it at law or in equity, seek injunctive or other equitable relief in response to any such breach.
d. Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
e. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
f. Assignment. Client may not assign this Agreement or delegate its performance without IM’s prior written consent, and any attempt to do so is void. IM may assign this Agreement or delegate its performance without Client’s consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
g. Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
h. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
i. Entire Agreement. This Agreement (including the Subscription Plan) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
j. Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
k. Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
l. No Third-Party Beneficiaries. Other than the IM Indemnified Parties, there are no third-party beneficiaries of this Agreement.
m. Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt (including electronic notification), if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 12.M. All notices to Client will be sent to the address listed on the Subscription Plan unless otherwise specified by Client. All notices to IM will be sent to the address set forth in the Subscription Plan.
n. Force Majeure. IM will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond IM’s reasonable control (a “Force Majeure Event”), so long as IM uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes IM to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.
o. Interpretation. If IM provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”
p. Counterparts. This Agreement (including the Subscription Plan) may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.