End User License Agreement

END USER LICENSING AGREEMENT

This End User Licensing Agreement (“EULA”) is expressly incorporated by reference into, and made part of, all Order Forms between STAQ.com, Inc. ("Company") and the Customer identified therein (“Customer”).  Either Company or Customer may individually be referred to as a "Party" or collectively as the "Parties."

Section 1.  The STAQ Reporting Platform

The Company has developed a proprietary web-enabled software interface (known and hereinafter referred to as the “STAQ Reporting Platform”) that centrally captures, collects, locates, stores, tracks and reports customers’ pertinent information, data and other computed statistics (the “Customer Data”) derived from the Customer’s third party advertising technology platforms (“Third Party Platforms”). The Company provides the transfer of Customer Data and other pertinent information from the Third Party Platforms to the Customer.  The phrase “Customer Data” includes information that is collected from the Third Party Platforms and that which is provided directly by the Customer. 

Section 2.  Company Grant of License.

The Company hereby grants to the Customer, during the term of this Agreement, a revocable, non-exclusive, non-transferable license to connect to, access and use the STAQ Reporting Platform solely for the purpose of obtaining and internally considering and evaluating relevant information and reports compiled by the Company and maintained in the STAQ Reporting Platform. The license granted to the Customer herein to access and use the STAQ Reporting Platform is conditioned upon the Customer’s agreement to be bound by, and compliance with, all of the terms of this Agreement.

Section 3.  Customer’s Grant of Right of Use. 

The Customer understands and agrees that, in performing its obligations under this Agreement, the Company will connect and have access to the Third Party Platforms by using application programming interfaces (APIs), manual login, scripts or bots, through the STAQ Reporting Platform. The Customer further understands that this will enable the Company to access, capture, collect, compile, download, display, transfer and report pertinent information to the Customer via the STAQ Reporting Platform. Accordingly, the Customer hereby grants to the Company the right to access the Third Party Platforms and, if required, to contact the Third Party Platforms on the Customer’s behalf to facilitate implementation of the Customer’s use of the STAQ Reporting Platform.

Section 4.   Customer's Representations and Warranties.

The Customer hereby represents and warrants to the Company that: (i) to Customer’s knowledge, it is not a party to any agreement, including its agreements with the Third Party Platforms, that would prohibit or otherwise prevent its or the Company’s performance of its obligations or enjoyment of its rights hereunder or compliance herewith or which would otherwise require the consent or approval of, or payment to, any third party, including but not limited to the Third Party Platforms; (ii) Customer's use of the STAQ Reporting Platform shall at all times be in accordance with all applicable and relevant laws, codes, rules and regulations (including any rules or regulations promulgated by advertising standards authorities); (iii) Customer has sufficient rights to grant to Company the right to access and use of Customer Data from the Third Party Platforms as set forth herein; (iv) any and all information provided by it to the Company is, and shall upon delivery be, complete and accurate in all material respects; (v) Customer’s access and use of the STAQ Reporting Platform does not conflict with its use of any other platforms, including the Third Party Platforms; (vi) each STAQ Full User Seat shall be used exclusively by one (1) individual and shall not be shared across multiple users; and (vii) it shall be solely liable for any acts or omissions which arise under any STAQ Full User Seat login.

Section 5.  Intellectual Property Rights. 

(a)             Company Ownership of the STAQ Reporting Platform. The Customer hereby acknowledges and agrees that the STAQ Reporting Platform (including any components thereof and related documentation) and any related copyrights, trademarks and other intellectual property rights are the sole and exclusive property of the Company. Nothing set forth herein shall be deemed or construed in any way to convey any right of any nature whatsoever (including ownership) in or to the STAQ Reporting Platform, any components thereof, the related documentation, or any related copyrights, trademarks or other intellectual property rights of the Company, except for the limited rights specifically granted to Customer hereunder to access and use the STAQ Reporting Platform in accordance with the terms of this Agreement.  Except as expressly granted in this EULA, there are no other licenses granted to Customer, express, implied or by way of estoppel.  All rights not granted in this EULA are reserved by Company.

(b)             Work Product Ownership. “Work Product” means all works of authorship and other works and all copies thereof, including without limitation all graphics, text, code, specifications, memoranda, , software (including source code), copy, scripts, data files, drawings, documentation, artwork, illustrations, graphic designs, text, information, photographs, images, audio and video materials, in any format or media, that are authored, prepared, designed, created, contemplated or developed in whole or in part by the Company hereunder, including all related intellectual property rights. Work Product may be created before or during the term of this Agreement. The Customer hereby acknowledges that all right, title and interest in the Work Product belongs to the Company except for the Customer Data coming from the Third Party Platforms (which, subject to the licenses granted herein, is owned by Customer and/or the Third Party Platform). To the extent that the Customer may provide the Company with any comments, suggested improvements, bug reports or similar items (collectively, “Input”), and the Input results in or is incorporated in any Work Product, the Customer hereby assigns any and all right, title and interest in and to such Input to the Company.

Section 6.  Confidentiality.

“Confidential Information” shall mean any confidential technical data, trade secret, know-how, or other confidential information disclosed in any form by a Party (the “Disclosing Party”) to the other Party hereunder (“Receiving Party”), including but not limited to  the consideration, payment terms, fees and other financial aspects of this Agreement, the terms of any of the Company’s agreements with any Customer, Third Party Platforms, or other third party, any and all proprietary information relating to STAQ Reporting Platform (including all programs, documentation and data, systems, software and other components), patents, trademarks, the Disclosing Party’s processes and methods for compiling and assembling data, strategies, business operations, financial information, technical information, customer lists, vendor lists, supplier lists, operating policies and procedures, user names, passwords and any encrypted information. “Confidential Information” shall not include information: (a) already lawfully known to or independently developed by the Receiving Party; (b) disclosed in published materials, which disclosure in not otherwise in breach of this Agreement; (c) generally known to the public; or (d) lawfully obtained from any third party, which, to the knowledge of the Party obtaining such information, has no obligation of confidentiality with respect to such information. Additionally, and for the avoidance of doubt, Aggregated Customer Information, though derived from Customer Data and Customer Information, shall not be Confidential Information. The Receiving Party agrees that, except to the extent otherwise required by law, it shall not disclose any Confidential Information to any third party and shall not use Confidential Information of the disclosing party for any purpose other than for the performance of such party’s obligations and or the enjoyment of such party’s rights hereunder. The Receiving Party further agrees that Confidential Information shall remain the sole property of the Disclosing Party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. Notwithstanding the foregoing, each Party may disclose the terms of this Agreement: (i) in connection with the requirements of an initial public offering or securities filing; (ii) in confidence to accountants, banks and financing sources and their advisors; (iii) in confidence in connection with the enforcement of this Agreement or rights under this Agreement; and (iv) in confidence in connection with a merger or acquisition or proposed merger or acquisition or the like.  No license shall be granted by the Disclosing Party to the Receiving Party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided in the Agreement. If the Receiving Party at any time is required or compelled to disclose any of the Disclosing Party’s Confidential Information to any government agency or court of competent jurisdiction, the Receiving Party (to the extent permitted by law) shall promptly notify the Disclosing Party of the required disclosure (prior to the disclosure, whenever possible, so that the Disclosing Party may seek an appropriate protective order). The Receiving Party shall return to the Disclosing Party or (at the Disclosing Party’s option) destroy all Confidential Information of the disclosing Party in the Receiving Party’s possession or control and shall permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party shall certify in writing that it has fully complied with its obligations under this section.

The Parties acknowledge that in the event of a breach of this Section 6, substantial injury could result to the disclosing Party and money damages will not be a sufficient remedy for such breach.  Therefore, in the event that the receiving Party engages in, or threatens to engage in, any act which violates any provision of this Agreement, the Parties agree that the non-breaching Party will have no adequate remedy in money or damages and, accordingly, shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement.  The non-breaching Party shall not be required to post a bond or other security in connection with the granting of any such relief.  The provisions of this Section shall survive expiration or other termination of this Agreement.

Section 7.  Restrictions and Prohibitions.

                  The Customer shall not decompile, disassemble, reverse engineer, copy, transfer, replicate, make alterations or modifications to, or otherwise access or use the STAQ Reporting Platform except as expressly permitted by this Agreement. The Customer shall not, nor shall it attempt to, participate in the development, marketing or distribution of a platform or other service competitive with the STAQ Reporting Platform.  Customer shall not attempt to obtain, or assist others in obtaining, access to the STAQ Reporting Platform, other than via a legitimately supplied username and password. Customer shall be responsible for any breach of this Agreement by any of its agents or Users. In addition, Customer shall not engage in the unauthorized download, reproduction, rebroadcast, redistribution, collection of Company’s Work Product and data reports; nor shall Customer destroy, alter, or corrupt the Company’s data. 

Section 8.  Disclaimer.

THE CUSTOMER UNDERSTANDS THAT THE COMPANY WILL BE AGGREGATING AND USING CUSTOMER DATA ACCESSED FROM CUSTOMER AND/OR THIRD PARTY PLATFORMS, AND THAT THE COMPANY HAS NO METHOD OF ENSURING THE ACCURACY OF SUCH ACCESSED DATA.  ACCORDINGLY, THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO THE ACCURACY, INACCURACY, CORRECTNESS, ERROR, TIMELINESS OR DELAY WITH RESPECT TO THE CONTENT, DISTRIBUTION, DISPLAY, PRESENTATION, REPORTING, TRANSMISSION, TRANSFER OR OTHER USE OF ANY OF THE CUSTOMER DATA.  EXCEPT AS SET FORTH HEREIN, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY OR NON-INFRINGEMENT, WITH RESPECT TO THE STAQ REPORTING PLATFORM OR ANY SERVICES FURNISHED HEREUNDER. THE CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY ADDITIONAL FEES OR COSTS INCURRED FROM THIRD PARTIES, WHETHER DIRECTLY OR INDIRECTLY CONNECTED OR NOT CONNECTED TO THE STAQ REPORTING PLATFORM.

Section 9.  Limitation of Liability.

IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY ADDITIONAL FEES, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE  DAMAGES, LOST PROFITS, LOST BUSINESS, LOST REVENUE, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, FAILURE TO REALIZE EXPECTED SAVINGS OR LOSS OR UNAVAILABILITY OF OR INNACURACY OR DAMAGE TO DATA OR INFORMATION, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY, NEGLIGENCE AND MISREPRESENTATION), AND WHETHER OR NOT THE PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.

IN NO EVENT SHALL THE COMPANY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT IN THE LAST TWELVE MONTHS PRIOR TO THE EFFECTIVE DATE OF THE NOTICE OF ANY SUCH CLAIM. THIS PROVISION APPLIES REGARDLESS OF HOW THE LIABILITY AROSE OR THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT (INCLUDING INDEMNITY) OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY, NEGLIGENCE AND MISREPRESENTATION).

NO ACTION OR PROCEEDING AGAINST THE COMPANY OR ANY OFFICER, DIRECTOR, INTERESTHOLDER, EMPLOYEE, PARENT, SUBSIDIARY, AGENT, REPRESENTATIVE, SUCCESSOR OR ASSIGN MAY BE COMMENCED MORE THAN TWELVE (12) MONTHS AFTER THE CLAIM ARISES.

Section 10. Export Compliance.

The Customer understands that there exist certain laws in the United States relating to export of materials to other countries or jurisdictions outside of the United States. The Customer hereby agrees to comply with all applicable laws of the United States, including its export laws and regulations in connection with the acquisition, use and transfer of the STAQ Reporting Platform. The Company makes no claims that the STAQ Reporting Platform may be lawfully viewed or accessed outside of the United States of America.

Section 11. Use of Customer Information; Aggregated Information.

The Customer understands and agrees that the Company will collect technical data and related information, including but not limited to the Customer Data and other technical information about the Customer’s computers and/or other devices, systems, application software and peripherals, and other information that is gathered periodically (collectively, the “Customer Information”) to facilitate the provision of notices, software updates, support and other services, if any, to the Customer relating to the STAQ Reporting Platform. Customer expressly understands and agrees that the Company may use the Customer Information to modify, update or improve the STAQ Reporting Platform, to provide and improve its services (to Customer and/or third parties). 

For purposes of benchmarking industry averages, including without limitation, as related to advertising sales performance metrics, Customer further grants to Company the right to use Customer Information to generate anonymized and aggregated information and data sets (the “Aggregated Information”) which Aggregated Information shall be owned by Company. The parties acknowledge and agree that Aggregated Information shall be anonymized and aggregated in a manner such that it cannot be used to identify the Customer.  The Company shall be free to use such Aggregated Information for any lawful purposes. The Customer may elect to have access to this benchmarking information with which it can evaluate its own performance against industry averages.  Upon any termination or expiration of this Agreement, the Customer may, upon written notice to Company, elect to have its Customer Information removed from the Company’s benchmarking activities and, subject to the Company’s rights in Aggregated Information set forth herein, the Company shall, going forward, cease all use of such Customer Information for such benchmarking purposes.

Section 12. Indemnification.

Each Party shall indemnify, defend and hold the other Party and the other Party’s officers, directors, interest holders, employees, agents, representatives, related entities, successors and assigns harmless from and against any and all third-party claims, demands, losses, liabilities, suits, damages and disputes whatsoever, including attorneys’ fees, arising from or relating to indemnifying Party’s breach of this Agreement.

Section 13. Term and Termination.

The term of this Agreement shall be for a period of one (1) year from the Contract Start Date (the “Initial Term”). The term hereof shall thereafter automatically renew for successive one (1) year terms (each a “Renewal Term”) unless the Customer provides written notice of its intention to terminate this Agreement at least thirty (30) days prior to expiration of the then-current term. The Initial Term and all Renewal Terms shall collectively be referred to as the “term” herein.

         The Agreement may be immediately terminated by Customer by serving written notice consistent with Section 15(k) hereof on the Company if the Company commits a material breach of the terms of the Agreement which breach, if capable of remedy, is not remedied within thirty (30) days after receipt of a written notice consistent with Section 15(k) hereof identifying the breach and requiring it to be remedied.  In addition, this Agreement and all schedules may be terminated by Customer effective immediately and without notice, in the event of: (a) the dissolution, termination of existence, liquidation or insolvency of the Company; (b) the appointment of a custodian or receiver for the Company; (c) the  institution by or against the Company of any proceeding under the United States Bankruptcy Code or any other foreign, federal or state bankruptcy, receivership, insolvency or other similar law affecting the rights of creditors generally; or (d) the making by the Company of a composition of, or any assignment or trust mortgage for the benefit of, creditors. This Agreement may be terminated by the Company at any time for any reason or for no reason at all, in its sole discretion. The rights to terminate the Agreement given by this clause shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

                  Upon the expiration or termination of the Agreement for any reason: (i) the Customer shall immediately cease to exercise any of its rights hereunder; (ii)  the Customer shall immediately pay all fees outstanding or accrued to the date of termination; and (iii) Company shall immediately block access to Customer’s user status and cease all of Customer’s access to the STAQ Reporting Platform.

Section 14. Data Privacy.

                  Customer understands and acknowledges that the Company does not and shall not collect any ‘Personal Data’ (as defined in the GDPR) from the Customer for any reason, and that Company shall take the necessary steps to ensure that all outputs of the STAQ Reporting Platform are effectively anonymized so as to ensure that living individuals cannot be identified from the same. Customer shall take all commercially reasonable steps to ensure that any Customer Data transmitted, submitted, or otherwise collected by Company at the direction of Customer in accordance with this Agreement shall not contain any Personal Data or shall otherwise be remitted to the Company by the Customer in an anonymized format sufficient so that such Customer Data does not and cannot be related back to an identifiable individual.

Notwithstanding the foregoing, in the event Customer deems it necessary to process data sets containing Personal Information, prior to any processing of data containing such Personal Information, Customer shall enter into a Data Processing Agreement (“DPA”) with the Company setting forth the categories of data processed, the purpose of such processing, and explicit processing instructions by which Company must process such data. Further, if necessary, Customer shall also enter into the appropriate EU Model Clause for the onward transfer of data containing Personal Information.

The Parties agree that with respect to all Customer Data, it shall be the responsibility of the Customer to devise, safeguard, transfer, share and use the Customer Data in compliance with applicable laws, directives, and regulations, including without limitation, any privacy and data protection laws and regulation in connection with the communication of commercial advertisements (including the CAN-SPAM Act, 2003 and any applicable similar laws and regulation). Customer understands and acknowledges that Customer Data shall only be available for retrieval by Customer for a period of thirty (36) months from the date the Customer Data (or each pertinent segment thereof) was initially originated or generated before the Customer Data is permanently deleted from Company’s systems in accordance with Company’s data retention practices. 

Section 15. General Provisions.

(a)             Headings.  The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement.

(b)             Counterparts.  This Agreement may be executed in counterparts (which may be exchanged by electronic mail, PDF, and/or facsimile), each of which shall be deemed an original, but which together shall constitute one and the same instrument.

(c)             Waiver.  No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof. 

(d)             Remedies Not Exclusive.  Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.

(e)             Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision.  The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.  The fact that any provision of this Agreement is held to be illegal, invalid or unenforceable in a particular jurisdiction shall have no effect upon the legality, validity, or enforceability of such provision in any other jurisdiction.

(f)              Non-Exclusivity.  This Agreement is non-exclusive. 

(g)             No Strict Construction.  If an ambiguity or question arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.

(h)             Assignment.  Neither this Agreement, any Exhibit or any rights or licenses granted hereunder may be assigned, delegated or subcontracted by Customer without the prior written consent of Company, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void ab initio. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees.  Notwithstanding the foregoing, a Party may assign its rights, duties or obligations under this Agreement without the consent of the other Party in the event of a merger, acquisition or other change in control of its ownership. 

(i)              Independent Contractor Relationship.  The Parties are independent contractor and this Agreement does not create an agency, partnership, or joint venture relationship between the Parties.  Each Party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.

(j)              Force Majeure.  Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event.  “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.

(k)             Notices.  All notices and other communications required or permitted to be given to a Party pursuant to this Agreement shall be in writing, and shall be deemed duly given (i) on the date delivered if personally delivered, (ii) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error, or (iii) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth on the first page of this Agreement; provided that a Party hereto may change its address for receiving notice by the proper giving of notice hereunder. A copy of any notice to Company shall be sent to Rosenberg Fortuna & Laitman, LLP, attention: Arthur S. Laitman, Esq., 666 Old Country Road, Suite 810, Garden City, New York, 11530, facsimile: (516) 228-6672.

(l)              Publicity.  Customer hereby grants Company the right to use Customer's name and any trademarks or service marks used in connection with Customer's name in advertising and promotional material of Company, and to include Customer in any of Company's customer lists.  Such use of Customer’s name and trademarks shall be solely to identify Customer as a customer of Company, and shall not be used in any manner that Customer, in its sole discretion, deems to be an explicit or implicit endorsement of Company, or which is likely to cause confusion as to Customer's relationship with Company's STAQ Reporting Platform.

(m)           Governing Law/Jurisdiction.  This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of New York.  For all such matters, each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts. The prevailing Party in any litigation shall be entitled to recovery of its reasonably attorneys' fees from the other Party in addition to any other award of damages from the court.

(n)             Entire Agreement.  This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof.  No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party. 

(o)             Survival.  The obligations under sections that contemplate performance or observance subsequent to termination or expiration of this Agreement, including the following sections:  Section 4 (“Customer's Representations and Warranties”), Section 6 (“Confidentiality”), Section 9 (“Limitation of Liability”), Section 10 ("Export Compliance"), Section 15 (“General Provisions”) and this Section 15(o) (“Survival”), and any other sections that state that they are to survive expiration or termination, shall survive the expiration or termination of this Agreement.