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Pixsy Syndication Agreement

These Terms of Service and Privacy Policy govern your use of this Pixsy Corporation ("Pixsy") web site ("Site") and the services provided via the Site.

RECITALS

A. Partner provides Internet-based search services to its end-users and other third parties through its browser, web site, and/or other distribution channels (“Partner Service”), which enable users to simultaneously search the World Wide Web using multiple search engines and databases, as well as other information and content in various media to end users via the World Wide Web and other electronic media environments;

B. Provider provides visual search functionality and a database of topical content; and

C. Provider desires to supply, and Partner desires to procure the Content for the purpose of use and display on the Partner Service (as defined below).

AGREEMENT

NOW, THEREFORE, the parties agree as follows:

Section 1. Definitions

Wherever used in this Agreement with initial terms capitalized, the following terms shall have the following defined meanings:

"Content" means any text, graphics, pictures, sound, video, data, advertiser listings, and other content, including without limitation the Search Results, (other than the Provider Marks) provided by Provider to Partner under this Agreement.

"Partner Marks" means those Trademarks of Partner and such other Trademarks (if any) as Partner may from time to time notify Provider in writing to be "Partner Marks" within the meaning of this Agreement.

"Partner" means any third party with whom Partner or any of its affiliates has entered into any agreement whereby Partner or any of its affiliates is granted the right to post and maintain Content on or through such third party's Web Site.

“Partner Service" means Internet-based search services provided to its end-users and other third parties through its browser, web site, and other distribution channels.

"Intellectual Property Rights" means any patent, copyright, rights in Trademarks, trade secret rights, moral rights and other intellectual property or proprietary rights arising under the laws of any jurisdiction.

"Person" means any individual, corporation, partnership, joint venture, association, trust or other entity or group.

"Provider Marks" means those Trademarks of Provider and such other Trademarks (if any) as Provider may from time to time notify Partner in writing to be "Provider Marks" within the meaning of this Agreement.

“Revenue” means gross amounts collected by Provider or Partner from advertisers and/or advertising networks on Partner web pages where Provider Content is shown.

“Results Page(s)” means each page that contain Search Results.

“Search Result(s)” means the information provided to the Partner Service by the Provider, which shall include descriptive text and a hypertext link to a Web Page, audio file, or image, in response to a user query submitted to the Provider Service by the Partner Service.

"Term" means the term of this Agreement as defined in Section 3.

"Trademarks" means any trademarks, service marks, trade dress, trade names, corporate names, proprietary logos or indicia and other source or business identifiers.

"Web Page" means a single HTML, WML, VXML, HDML or similar document, which is all or a portion of a portable or nonportable Web Site.

"Web Site" means, with respect to any Person, all points of presence and/or services maintained by such Person on or electronically connected (both wired and wireless connections) with the Internet (including, without limitation, the World Wide Web) or on any successor public data network.

Section 2. SERVICES AND LICENSES

2.1 Delivery of Content. Provider will provide Content to Partner’s end users via electronic transfer or by other automated means specified by Partner. Unless otherwise agreed by the parties, the Content will be delivered by search box and/or in a real-time basis in XML format via HTTP protocol or other means as Partner and Provider may determine. Users will perform search queries using the Partner search box and Provider will serve up Search Results on a Provider-branded hosted Search Results page.

2.2 License to Content. Provider hereby grants to Partner’s end users a non-exclusive, royalty-free, worldwide license to use, distribute, publish, display, perform and otherwise exploit the Content in connection with posting and maintaining the same on or through the Partner Service. All rights with respect to the Content not expressly granted to Partner by the foregoing are reserved to Provider.

2.3 Search Services. The foregoing license includes the right of Partner’s end users to query the Provider content in real-time for each search conducted via Partner’s browser.

2.4 License to Provider Marks. Provider hereby grants Partner a non-exclusive, nontransferable, royalty-free, worldwide license to use, reproduce, publish, perform and display the Provider Marks: (a) on the Partner Service in connection with posting and maintaining the Content thereon; and (b) in promotional and marketing materials, content directories and indexes, and electronic and printed advertising, publicity, press releases, newsletters and mailings about Partner.

2.5 Approval of Trademark Usage. Partner shall not use or exploit in any manner any of the Provider Marks except in such manner and media as Provider may consent to in writing, which consent shall not be unreasonably withheld or delayed. Provider may revoke or modify any such consent upon written notice to Partner (provided, that such revocation or modification shall not be applicable to any materials produced or published in accordance with this Section 2.5 prior to the date of such revocation or modification).

2.6 Publicity. The parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party shall have any obligation to do so. In addition, neither party shall issue such publicity and general marketing communications concerning their relationship without the prior written consent of the other party. Neither party shall disclose the terms of this Agreement to any third party, except as required by law.

2.7 Exclusivity. Provider will be the exclusive provider of image and video search to Partner during the term of this agreement. Partner acknowledges that nothing in this Agreement shall be deemed or construed to prohibit Provider from providing the Content or similar materials to any third party for any use or exploitation whatsoever.

2.8 Compensation. Provider will create, host, and maintain content on a media search widget, thumbnail feed, engine, or other thumbnail distribution mechanism hosted on the Partner site that has links to original source material and the Provider search results. Provider will assume all costs for creating, hosting, delivering, and maintaining content. In exchange, Provider shall retain 100% of the revenue generated wherever content is shown.

Section 3. TERM AND TERMINATION

3.1 Term. This Agreement shall remain in force throughout the duration that content is displayed by Partner. Partner can terminate this agreement at any time for convenience.

3.2 Termination. Either party may: (1) terminate the Term upon not less than thirty (30) days prior written notice to the other party of any material breach hereof by such other party, provided that such other party has not cured such breach within such thirty (30) day period; or (2) terminate the Term upon written notice to the other party on the following grounds: (a) where either party goes into voluntary or involuntary liquidation; (b) where either party is declared insolvent either in bankruptcy proceedings or other legal proceedings; (c) where an agreement with creditors has been reached by either party due to its failure or inability to pay its debts as they fall due; or (d) where a receiver is appointed over the whole or part of either party’s business.

3.3 Effect of Termination. Upon termination or expiration of the Term for any reason, all rights and obligations of the parties under this Agreement shall be extinguished, except that the rights and obligations of the parties under Sections 2.8, 3.3, 5, 6, 7 and 8 shall survive any termination or expiration of the Term.

Section 4. CONTENT

4.1 Provider Responsibility. (a) Provider is solely responsible for the creation and delivery of the Content to Partner’s users; and (b) Provider shall manage and otherwise control the Content. Partner shall have no responsibility or obligation for any performance, misperformance or other failure of the Partner Service. Provider shall ensure that the Content shall be and remain fully compatible with the Partner Service; provided, however, upon request from Provider, and at Provider's sole expense, Partner shall make commercially reasonable efforts to assist Provider in resolving any Content related compatibility problem.

4.2 Data Collection and Privacy. Provider shall not collect or track user information without the prior, express written consent of Partner.

Section 5. REPRESENTATIONS AND WARRANTIES; INDEMNITY

5.1 Representations, Warranties and Certain Covenants.

(a) Provider. Provider represents, warrants and covenants that:

(i) the performance by Provider pursuant to this Agreement and/or the rights herein granted to Partner will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any agreement by which Provider is bound;

(ii) Provider owns all right, title and interest in and to the Content, or has the right to deliver the Content for display on the Content Pages in accordance with the terms of this Agreement, and all associated Intellectual Property Rights, and none of the Content, the Provider Marks or any other items delivered to Partner’s users by Provider shall violate, misappropriate or infringe any Intellectual Property Right, data or privacy right or other right of any Person, or constitute legally obscene or indecent materials or a libel or defamation of any Person; and

(iii) with respect to the performance of its obligations hereunder, including, without limitation, the provision of the Content, Provider shall comply with all applicable laws, rules and regulations (including, without limitation, export control and obscenity laws).

(b) Partner. Partner represents, warrants and covenants that:

the performance by Partner pursuant to this Agreement and/or the rights herein granted to Provider will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any agreement by which Partner is bound; and
with respect to the performance of its obligations hereunder, Partner shall comply with all applicable laws, rules, regulations (including without limitation, export control and obscenity laws).

5.2 Indemnity.

(a) Provider Indemnification. Provider will defend, indemnify and hold harmless Partner from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) arising out of or in connection with the Content or the Provider Marks or any actual or alleged breach of any of Provider's representations, warranties or covenants set forth in Section 5.1(a) above. Partner shall promptly notify Provider of any third-party claim of which it becomes aware for which its seeks indemnification pursuant to this Section 5.2 and shall: (a) at Provider's expense, provide reasonable cooperation to Provider in connection with the defense or settlement of any such claim; and (b) at Partner's expense, be entitled to participate in the defense of any such claim. Provider shall not acquiesce to any judgment or enter into any settlement that adversely affects Partner's rights or interests without prior written consent of Partner.

(b) Partner Indemnification. Partner will defend, indemnify and hold harmless Provider from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) arising out of or in connection with any actual or alleged breach of any of Partner's representations, warranties or covenants set forth in Section 5.1(b) above. Provider shall promptly notify Partner of any third-party claim of which it becomes aware for which its seeks indemnification pursuant to this Section 5.2(b) and shall: (i) at Partner's expense, provide reasonable cooperation to Partner in connection with the defense or settlement of any such claim; and (ii) at Provider's expense, be entitled to participate in the defense of any such claim. Partner shall not acquiesce to any judgment or enter into any settlement that adversely affects Provider's rights or interests without prior written consent of Provider

Section 6. EXCLUSIONS; NO LIABILITY

6.1 WARRANTIES EXCLUDED. EXCEPT AS SET FORTH IN SECTION 5.1, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PARTNER SERVICE, OR ANY ITEMS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER ACKNOWLEDGES THAT THE PARTNER SERVICE (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY PARTNER IN CONNECTION WITH HOSTING THE PARTNER SERVICE OR PERFORMANCE OF ANY SERVICES HEREUNDER) ARE PROVIDED "AS IS" AND THAT PARTNER MAKES NO WARRANTY THAT THE PARTNER SERVICE OR ANY SERVERS HOSTING THE PARTNER SERVICE WILL BE FREE FROM BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO ANY OF THE PARTNER SERVICE WILL BE UNINTERRUPTED.

6.2 LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNITY OBLIGATIONS OF PROVIDER SET FORTH IN SECTION 5 ABOVE, NEITHER PARTY WILL HAVE ANY LIABILITY FOR, AND EACH PARTY HEREBY WAIVES AND DISCLAIMS, ANY AND ALL CLAIMS AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), WARRANTY OR OTHERWISE, RELATING TO ANY LOSS OR DAMAGE TO PROPERTY, BUSINESS OR DATA FROM ANY CAUSE, OR ANY INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, IN EACH CASE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY BREACH HEREOF) OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. IN NO EVENT WILL EITHER PARTY'S LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF PARTNER) UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF THE PRODUCTS OR SERVICES RENDERED BY SUCH PARTY UNDER THIS AGREEMENT (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY PARTNER OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE CONTENT PAGES), THE PARTNER SERVICE AND ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT EXCEED THE COMPENSATION PAID BY PARTNER TO PROVIDER UNDER THIS AGREEMENT PLUS ANY UNPAID AMOUNTS DUE AND OWING AT THE TIME SUCH LIABILITY AROSE.

Section 7. OWNERSHIP

7.1 Provider. As between the parties, Provider retains all right, title and interest in and to the Content and the Provider Marks, along with all Intellectual Property Rights associated with any of the foregoing. All goodwill arising out of Partner's use of any of the Provider Marks shall inure solely to the benefit of Provider.

7.2 Partner. As between the parties, except as expressly provided in Section 7.1, Partner retains all right, title and interest in and to the Partner Service (including, without limitation, any and all content, data, URLs, domain names, technology, software, code, user interfaces, user information and data, "look and feel", Trademarks and other items posted thereon or used in connection or associated therewith), the Partner Services and the Partner Marks, along with all Intellectual Property Rights associated with any of the foregoing. All goodwill arising out of Provider's use of any of the Partner Marks shall inure solely to the benefit of Partner.

7.3 Other Trademarks. Partner shall not register or attempt to register any of the Provider Marks or any Trademarks which Provider reasonably deems to be confusingly similar to any of the Provider Marks. Provider shall not register or attempt to register any of the Partner Marks or any Trademarks which Partner reasonably deems to be confusingly similar to any of the Partner Marks.

7.4 Further Assurances; Limitation. Each party shall take, at the other party's expense, such action (including, without limitation, execution of affidavits or other documents) as the other party may reasonably request to effect, perfect or confirm such other party's ownership interests and other rights as set forth above in this Section 7. This Agreement and delivery of the Content or any portion hereunder shall not cause Partner to be in violation of any law of any jurisdiction or third party agreement, and Partner may modify terms of delivery of the Content if necessary in Partner’s sole discretion to avoid any such potential violation.

Section 8. GENERAL PROVISIONS

Confidentiality. Each party (the "Receiving Party") undertakes to retain in confidence the terms of this Agreement and all other non-public information and know-how of the other party disclosed or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"); provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Provider acknowledges that the terms of this Agreement are Confidential Information of Partner. The foregoing restrictions shall not apply to any information that: (a) was known by the Receiving Party prior to disclosure thereof by the other party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed); or (e) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party shall return to the other all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section 8.1.
Independent Contractors. Provider and Partner are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise or agency relationship between Provider and Partner. Neither party has any authority to enter into agreements of any kind on behalf of the other party.

8.3 Assignment. Provider may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of Partner; except that either party may, without the other party's consent, assign this Agreement or any of its rights or delegate any of its duties under this Agreement: (a) to any affiliate of such party; or (b) to any purchaser of all or substantially all of such party's assets or to any successor by way of merger, consolidation or similar transaction. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.

8.4 Choice of Law; Forum Selection. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without reference to its choice of law rules.

8.5 Nonwaiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

8.6 Force Majeure. Neither party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond such party's reasonable control.

8.7 Notices. Any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, mailed via confirmed facsimile or e-mail, or delivered by recognized courier service, properly addressed and stamped with the required postage, to the individual; signing this agreement on behalf of the applicable party at its address specified above and shall be deemed effective upon receipt. Either party may from time to time change the individual to receive notices or its address by giving the other party notice of the change in accordance with this section. In addition, a copy of any notice sent to Partner shall also be sent to the following address:

Pixsy Corporation
2200 Sixth Avenue, Suite 790
Seattle, WA 98121
info@pixsy.com
206.418.6670

8.8 Savings. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. If any provision of this Agreement shall, for any reason, be determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, such provision shall be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the parties as expressed herein.

8.9 Integration. This Agreement contains the entire understanding of the parties hereto with respect to the transactions and matters contemplated hereby, supersedes all previous agreements or negotiations between Partner and Provider concerning the subject matter hereof, and cannot be amended except by a writing signed by both parties. This Agreement does not constitute an offer by Partner and it shall not be effective until signed by both parties.

8.10 Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument. To expedite the process of entering into this Agreement, the parties acknowledge that Transmitted Copies of the Agreement will be equivalent to original documents until such time as original documents are completely executed and delivered. "Transmitted Copies" will mean copies that are reproduced or transmitted via photocopy, facsimile or other process of complete and accurate reproduction and transmission.

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