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Terms and Conditions

MASTER TERMS

PLEASE READ THESE MASTER TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY ADHAWK, INC. (“Broadlume”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH BROADLUME WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“DEALER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA BROADLUME’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY BROADLUME SHALL BE DEEMED TO BE MUTUALLY EXECUTED.  UPON MUTUAL EXECUTION, EACH ORDER FORM SHALL BE INCORPORATED INTO AND FORM A PART OF THE AGREEMENT.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1.     Services.  Subject to the terms and conditions of this Agreement, Broadlume will perform certain services for Dealer (the “Services”) pursuant to signed Order Forms that may be entered into by the parties from time to time. 

a.      Website Services.  In the event Dealer enters into an Order Form to purchase certain Services which may include website development and maintenance, certain add-on features such as chat bots and web-to-text features, email hosting, blogging and/or social media engagement (the “Website Services”), Broadlume will provide such Website Services as set forth in such Order Form and subject to these Terms.  To the extent Broadlume creates any content, information or other materials in connection with the Website Services (“Website Materials”), Broadlume shall own and retain all right, title and interest in and to such Website Materials and all associated Intellectual Property Rights. In the event Dealer owns the Domain Name, Broadlume hereby grants to Dealer a limited, revocable, non-sublicensable, non-transferable right and license to display Website Materials on such Domain Name during the applicable Order Form Term (as defined below).  In addition, Broadlume hereby grants to Dealer a limited right and license to access and use certain data, information and other materials generated by, collected from or otherwise provided to Broadlume by Website visitors (“Website Information”) solely for Dealer’s own internal business purposes and solely in accordance with any and all applicable laws, the applicable Website privacy policy and any and all restrictions as may be further specified by Broadlume from time to time.  “Website” means the website displayed at the URL set forth in the applicable Order Form for Website Services (the “Domain Name”).  “Intellectual Property Rights” means any and all patents, copyrights, trade secrets, trademarks and other proprietary or intellectual property rights recognized in any jurisdiction worldwide, including without limitation moral rights.

b.     Digital Advertising Services.  In the event Dealer enters into an Order Form to purchase certain Services which may include planning and management of the display or delivery of paid online search and other online advertisements on certain third party search engine (e.g., Google, Bing) and/or social media (e.g., Facebook, Instagram) platforms and reporting and analysis of same (“Digital Advertising Services”), Broadlume will provide such Digital Advertising Services as set forth in such Order Form and subject to these Terms.  Upon the parties’ mutual signature of an Order Form that includes Digital Advertising Services, Dealer hereby authorizes Broadlume to sign up, on Dealer’s behalf, with applicable third-party search engine and/or social media platforms set forth in such Order Form for  digital advertising accounts.  Dealer hereby represents and warrants that it agrees to, is bound by and will abide by the Google terms of service located at https://policies.google.com/terms, as may be updated by Google from time to time, the Facebook terms of service located at https://www.facebook.com/legal/commercial_terms, as may be updated by Facebook from time to time and/or the Microsoft terms of service located at Microsoft.com/en-us/servicesagreement, as may be updated by Microsoft from time to time (as applicable).  Dealer shall provide Broadlume with all reasonably necessary assistance in order to enable Broadlume to perform the Digital Advertising Services. 

c.      Flooring Stores United Network Services.  In the event Dealer enters into an Order Form to purchase certain Services related to the Flooring Stores United Network (“Flooring Stores United Network Services” or “Network Services”), Broadlume will provide such Network Services as set forth in such Order Form and subject to these Terms.  As part of the Network Services, Broadlume will connect Dealer with certain manufacturers, distributors or other providers of flooring products (“Manufacturers”) in the Network, such that Dealer can purchase certain flooring products promoted, sold, shipped, distributed or otherwise made accessible to Dealer by a Manufacturer (“Products”) and resell such Products to end customers in the geographical area specified in the applicable Order Form (“Territory”) in accordance with the terms set forth in these Terms and in the applicable Order Form.  “Flooring Stores united Network” or “Network” means Broadlume’s network of participants in the flooring industry.  In addition, as part of the Network Services Broadlume will develop, design, create and otherwise make advertisements or other marketing materials (“Ads” or “Advertisements”) promoting or otherwise marketing Dealer, and Broadlume will display and otherwise distribute such Advertisements to end customers and other third parties.   Dealer shall maintain complete and accurate records applicable to all Products purchased by Dealer during the term of the Network Services Order Form and shall retain such records for a period of two (2) years from the date of the applicable Product purchases.  Broadlume shall have access to all such records no more than one (1) time per year for the purpose of verifying Dealer’s compliance with the terms and conditions of this Agreement.  Dealer shall cooperate with Broadlume by providing Broadlume with access to Dealer’s records within seven (7) days of Broadlume’s request.  The examination of such records shall be conducted at a mutually agreeable time and place.

d.     Broadlume Payments™ Services.      By entering into an Order Form to purchase Services related to payment processing services (“Broadlume Payments™ Services”), Dealer may establish an account (“End-User Account”) with Fattmerchant, Inc. (doing business as Stax), an independent service organization and Broadlume’s third party payment services provider (“PSP”) to accept electronic payments for goods and services and use other services made available to dealers generally by the PSP. Dealer acknowledges and agrees that the PSP and not Broadlume will provide the Broadlume Payments™ Services directly to Dealer pursuant to a Sub-Merchant Agreement between the PSP and Dealer (“Sub-Merchant Agreement”). The Order Form for Broadlume Payments™ Services explains the Broadlume Payments™ Services, the PSP’s Privacy Policy, the terms of Broadlume’s access and use of data associated with the End-User Account, and any other activities that Broadlume may perform with respect to the Broadlume Payments™ Services. The Order Form for Broadlume Payments™ Services gives Broadlume authorization to communicate relevant data with respect to the End-User Account to the PSP. Dealers will also have access to the Broadlume Payments™ Services online portal (the “Payments Portal”) through which Dealer may manage Dealer’s End-User Account.

e.     Account.  Broadlume will provide Dealer with access privileges (an “Account”) that permit Dealer to access Broadlume’s digital portal that may provide certain insights, metrics and other reporting applicable to the Services (the “Dashboard”).  Dealer must provide accurate and complete information and keep the Account information updated.  Dealer is solely responsible for the activity that occurs on the Account and for keeping the Account password secure.  Dealer shall be responsible for the acts or omissions of any person who accesses the Dashboard using passwords or access procedures provided to or created by Dealer.  Broadlume hereby grants to Dealer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Dashboard through the Account during the Term solely for Dealer’s internal business purposes.

f.      Cooperation.  Dealer will provide or otherwise make available to Broadlume any and all content (including without limitation photographs), descriptions, materials, trademarks, logos and other information (collectively, “Dealer Materials”) and other assistance (together with Dealer Materials, the “Dealer Resources”) as may be necessary or reasonably requested by Broadlume in connection with its performance of the Services.  Dealer bears all responsibility and liability for the accuracy, completeness and timeliness of the Dealer Resources and acknowledges that Broadlume’s ability to complete any Services is dependent on same.  Dealer’s failure to timely perform any of its obligations under this Agreement shall relieve Broadlume of its dependent obligations to the full extent of such delay.  Dealer hereby grants to Broadlume a limited, non-exclusive, worldwide, royalty-free right and license (including the right to sublicense to Manufacturers) during the Term to access, use, edit, modify, translate, publish, display, distribute and create derivative works of Dealer Materials for use in connection with the Services.  Dealer hereby acknowledges and agrees that Broadlume shall have no obligation to retain, store or otherwise make accessible to Dealer any Dealer Materials provided by or on behalf of Dealer to Broadlume under this Agreement (including without limitation any website content previously used by Dealer), and Broadlume shall not be liable for any loss or destruction of any Dealer Materials.  

g.      Restrictions.  Except as expressly permitted in this Agreement, Dealer shall not directly or indirectly (i) use any of Broadlume’s Confidential Information (as defined below) to create any service, software, documentation or data that is similar to any aspect of the Services; (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (iii) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (iv) copy, crawl, scrape, spider, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services (through use of manual or automated means); (v) jeopardize the security of any user account on the Services, including without limitation Dealer’s Account (such as by allowing an unauthorized person to log in to the Services), attempt, in any manner, to obtain the password, account or other security information from any other user of the Services, or violate the security of any computer network, or crack any passwords or security encryption codes; (vi) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United  States or any other relevant jurisdiction; or (vii) permit any third party to engage in any of the foregoing proscribed acts.  Dealer may not access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or form any other benchmarking or competitive purposes.

h.     Privacy/Security. Dealer must have and enforce a privacy policy that complies with all applicable laws, rules and regulations including without limitation the treatment of all personal information in accordance with European Union and other non-U.S. applicable laws and governing authorities to the extent that Dealer sells into international marketplaces or otherwise is subject to the laws of those authorities. Dealer must secure buyer information and not allow buyer information to be disclosed except in accordance with Dealer’s privacy policy. Dealer must establish security processes to protect personal information in accordance with applicable law and at least as restrictive as industry standards, but no less than reasonable care. Dealer acknowledges that Dealer’s information and Dealer’s buyers’ information (personal or otherwise) may be transmitted to the United States or European Union and other non-U.S. jurisdictions as a result of Broadlume providing the Services. In accessing the      Payments Portal as permitted under the Agreement, Dealer must report any security breaches promptly to Broadlume. Dealer is responsible for any breaches of security that occur through Dealer’s access or login credentials of the Dashboard, Dealer’s Account, or Payments Portal.

2.     Fees; Payment

a.      Fees.  In consideration for the Services provided to Dealer by Broadlume hereunder, Dealer agrees to pay Broadlume fees in accordance with the fee schedule set forth in the applicable Order Form (the “Fees”).  The Fees during any Renewal (as defined below) may be increased by Broadlume upon notice at least fifteen (15) days before the end of the then-current Order Form Initial Term (as defined below) or Renewal (as applicable). 

b.     Payment.  Broadlume shall invoice Dealer in accordance with the invoicing schedule set forth in the applicable Order Form.  If no invoicing schedule is set forth on an Order Form, then Broadlume shall invoice Dealer on a monthly basis.  Dealer will pay all invoices within thirty (30) days of the date of the invoice. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of one- and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. In addition to its other rights and remedies, Broadlume may, at its option, suspend Dealer’s access to the Services or terminate this Agreement in the event that Dealer is not current in the payment of any amounts owed to Broadlume.  Except as may be expressly set forth on an applicable Order Form for Payment Services, Network Services, Website Services and/or Digital Advertising Services, all amounts due hereunder are non-refundable and non-cancelable.

c.      Credit Card.  In the event Dealer elects to pay the Fees due via credit card, the following terms shall apply:

                                      i.     Billing. Broadlume will use a third-party payment processor (the “Payment Processor”) to bill Dealer for the Services through a payment account linked to Dealer’s Account (the “Billing Account”). The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement.  Currently, Broadlume uses Stripe, Inc. as the Payment Processor. Dealer can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. Broadlume is not responsible for any error by, or other acts or omissions of, the Payment Processor.  By choosing to pay for the Services using a credit card, Dealer agrees to pay Broadlume, through the Payment Processor, all Fees due for the Services in accordance with the payment terms set forth on the applicable Order Form, and Dealer authorizes Broadlume, through the Payment Processor, to charge Dealer’s chosen payment provider (the “Payment Method”). Dealer agrees to make payment using that selected Payment Method. Broadlume reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

ii.               Payment Method. The terms of Dealer’s payment will be based on the Payment Method and may be determined by agreements between Dealer and the financial institution, credit card issuer or other provider of the chosen Payment Method. If Broadlume, through the Payment Processor, does not receive payment from Dealer, Dealer agrees to pay all amounts due on the Billing Account upon demand.

iii.              Recurring Charges.  Dealer acknowledges that the Services may have an initial and recurring payment feature and Dealer accepts responsibility for all recurring charges prior to termination of the applicable Services. Broadlume MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM DEALER, UNTIL DEALER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY Broadlume) THAT DEALER WISHES TO CHANGE THE PAYMENT METHOD OR UNTIL THE APPLICABLE ORDER FORM IS TERMINATED OR EXPIRES. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE Broadlume REASONABLY COULD ACT.

iv.              Current Information Required. DEALER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. DEALER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP THE BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND DEALER MUST PROMPTLY NOTIFY Broadlume OR THE PAYMENT PROCESSOR IF THE PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF DEALER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF DEALER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE BY CONTACTING Broadlume AT BILLING@Broadlume.COM. IF DEALER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, DEALER AGREES THAT Broadlume MAY CONTINUE CHARGING DEALER FOR THE SERVICES UNDER THE BILLING ACCOUNT UNTIL THE APPLICABLE ORDER FORM IS TERMINATED OR EXPIRES.

v.              Change in Amount Authorized. If the amount to be charged to the Billing Account varies from the amount Dealer preauthorized (other than due to the imposition or change in the amount of state sales taxes), Dealer has the right to receive, and Broadlume shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement Dealer has with the payment provider will govern Dealer’s use of the Payment Method. Dealers agree that Broadlume may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

d.     Taxes and Expenses.  All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Dealer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Broadlume’s net income. 

3.     Ownership.

a.      By Dealer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Dealer (and its licensors) shall retain all rights, title and interest (including all Intellectual Property Rights) in and to Dealer Materials, Dealer Confidential Information and Domain Name (solely in the event Dealer purchased the Domain Name).  All goodwill arising from Broadlume’s use of Dealer’s trademarks and logos shall inure solely to the benefit of Dealer.  Dealer acknowledges and agrees that Broadlume shall have no obligation to store any Dealer Materials after completion of the applicable aspect of the Services, except to the extent required by applicable law. 

b.     By Broadlume.  Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Broadlume (and its licensors) shall retain all rights, title and interest (including all Intellectual Property Rights) in and to the Services, Network, Dashboard, Broadlume Materials, Domain Name (solely in the event Broadlume purchased the Domain Name), Feedback, Broadlume Confidential Information and Third Party Materials, including all copies, modifications and derivative works of any of the foregoing.

c.      Feedback; General Knowledge.Broadlume shall own any and all suggestions for correction, change or modification to the Services, and other feedback, information and reports provided to Broadlume hereunder (collectively, “Feedback”), and Dealer shall and hereby does assign any rights in such Feedback to Broadlume. In addition, for the avoidance of doubt, Dealer expressly acknowledges and agrees that Broadlume is free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder, including that it could have acquired performing the same or similar services for another dealer, and to collect and use for any purpose aggregated and anonymous data collected or derived from any use or performance of any aspect of the Services (provided that none of the foregoing specifically identifies Dealer) and produce materials therefrom, all of which are the sole and exclusive property of Broadlume. In addition, Dealer acknowledges that Broadlume provides services similar to those provided under this Agreement to third parties and Broadlume may create or otherwise provide certain content and other materials for third parties that are similar to the Website Materials, Website Information, Advertisements and other information, content, data and materials of any kind created or otherwise used by Broadlume in connection with the Services (collectively, the “Broadlume Materials”). 

4.     Term; Termination.

a.      Term.  This Agreement shall commence as of the Effective Date and shall continue until terminated in accordance with the terms set forth herein (the “Term”).  Unless otherwise set forth in an applicable Order Form, the initial term of each Order Form starts on the applicable Order Form Effective Date (as defined on the applicable Order Form) and continues for one (1) year thereafter (“Order Form Initial Term”), and upon expiration of the Order Form Initial Term, the applicable Order Form shall automatically renew for additional periods of the same length as the Order Form Initial Term (each, a “Renewal,” and together with the Order Form Initial Term, the “Order Form Term”), unless either party provides written notice of its intent to not renew the applicable Order Form at least thirty (30) days before the end of the then-current Order Form Initial Term or Renewal.  Notwithstanding the foregoing, unless otherwise set forth in an applicable Order Form for Digital Advertising Services, the Order Form Initial Term for Digital Advertising Services is ninety (90) days from the applicable Order Form Effective Date and each Renewal shall be monthly thereafter, unless either party provides written notice of its intent to not renew the applicable Order Form for Digital Advertising Services at least 30 days before the end of the then-current Order Form Initial Term or Renewal. 

b.     Termination.  If either party materially breaches a material provision of this Agreement or any Order Form (including failure to make any payment due hereunder), the other party may terminate this Agreement or the applicable Order Form upon thirty (30) days prior written notice specifying the breach (ten (10) days for a failure to make any payment), and this Agreement or the applicable Order Form shall automatically terminate at the end of such period unless the breach is cured within such period.  In addition, Broadlume may terminate this Agreement or any Order Form at any time for any reason, without penalty, which termination shall be effective at the end of the notice period set forth in such termination notice.  Either party may terminate this Agreement (including all Order Forms) immediately upon written notice upon the occurrence of any of the following events: (i) any voluntary or involuntary filing in bankruptcy, reorganization or receivership or under similar laws for the protection of creditors, by or directed against the other party, which is not withdrawn within thirty (30) days of such filing; (ii) any assignment for the benefit of creditors; (iii) any liquidation or dissolution of the other party or the other party ceases to do business in the normal course; or (iv) Dealer’s violation of Section 1 (g) [Restrictions]. 

c.      Effect of Termination. The following Sections shall survive any termination of this Agreement: Sections 1(g), 2, 3, this 4(c), 5, 6(b), 7, 8 and 9.  In the event that all Order Forms entered into between the parties have been terminated or are otherwise expired, then Broadlume shall return to Dealer any and all access keys, log-ins or other credentials to Domain Names owned by Dealer (if applicable). 

5.     Confidentiality.

a.      Definition.  Confidential Information” means any and all information or material of a party which is provided to the other party, or to which the other party has access, that: (i) is confidential or proprietary to the disclosing party, which derives economic value from not being generally known or is the subject of reasonable efforts by the disclosing party to maintain its secrecy; (ii) would, given the nature of the information or circumstances of disclosure, reasonably be considered confidential or proprietary; or (iii) the disclosing party obtains from any third party which the disclosing party treats as proprietary, whether or not owned by the disclosing party.  For clarity, the terms of this Agreement are Confidential Information of both parties.

b.     Exclusions.  For purposes of this Agreement, “Confidential Information” shall not include information or material which (i) enters the public domain (other than as a result of a breach of this Agreement); (ii) was in the receiving party’s possession prior to its receipt from the disclosing party; (iii) is independently developed by the receiving party without the use of Confidential Information; or (iv) is obtained by the receiving party from a third party under no obligation of confidentiality to the disclosing party.

c.      Use and Disclosure Restrictions.  Each party hereby agrees (i) to take all necessary precautions reasonably calculated to protect the other party’s Confidential Information from unauthorized disclosure, access or use, exercising a degree of care not less than the care used by such party to protect its own Confidential Information that it does not wish to disclose, but in no event less than a reasonable degree of care; (ii) to use the other party’s Confidential Information only for the performance of this Agreement and the exercise of any rights under this Agreement and for no other purpose; and (iii) not to disclose any Confidential Information, or any part or parts thereof, to any third party and/or any of its officers, directors, employees, advisors or counsel (collectively, “Representatives”), except that such party may disclose relevant aspects of the disclosing party’s Confidential Information to its Representatives only to the extent such disclosure is reasonably necessary for the performance of such party’s duties; provided however that each such Representative has agreed to be bound by confidentiality provisions at least as restrictive as the terms of this Agreement.

d.     Additional Disclosures. Nothing herein shall prevent receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (i) promptly notify the disclosing party in writing of such requirement to disclose (to the extent legally permitted by applicable law, rule or legal process) and (ii) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.  In addition, either party can provide a copy of this Agreement to its financial, legal or other professional advisors or potential financing sources in connection with a bona fide due diligence request for a financing, merger, acquisition or similar transaction.

e.     Injunctive Relief.  The parties acknowledge and agree that the disclosure of Confidential Information may result in irreparable harm for which there is no adequate remedy at law.  The parties therefore agree that the disclosing party may be entitled to seek an injunction in the event the receiving party violates or threatens to violate the provisions of this Section 5, and that no bond will be required.  This remedy will be in addition to any other remedy available at law or equity.

6.     Warranties; Disclaimer.

a.      Mutual.  Each party represents and warrants that (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized, (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder, (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound. 

b.     By Dealer.  Dealer represents and warrants that (i) it has sufficient right, title and interest in the Dealer Materials and any other data provided hereunder to Broadlume or to the PSP to grant the rights and licenses granted to Broadlume hereunder and to the PSP under the Sub-Merchant Agreement; (ii) the Dealer Materials, and Broadlume, the PSP’s and any Manufacturer’s use thereof, do not infringe, violate or misappropriate any third party Intellectual Property Rights; (iii) there are no actual or threatened lawsuits, claims or proceedings alleging that the Dealer Materials violate any third party Intellectual Property Rights or applicable laws; (iv) the Dealer Materials and any content and/or services which refer, evidence or relate to the Dealer Materials are factually accurate and do not contain any (a) fraudulent, deceptive or misleading statements or (b) statements which discriminate, defame, misrepresent, ridicule or attack an individual or group on the basis of age, color, national origin, race, religion, sex, sexual orientation or handicap; (v) the Dealer Materials neither imply, promote nor make claims that cannot be readily verifiable or provable and (vi) the use, reproduction, distribution or transmission of Dealer Materials, including links to other content, do not violate any applicable laws.

c.      Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, NETWORK, DASHBOARD, WEBSITE, DOMAIN NAME, Broadlume MATERIALS, Broadlume CONFIDENTIAL INFORMATION, THIRD PARTY MATERIALS AND ANY OTHER SUBJECT MATTER UNDER THIS AGREEMENT ARE PROVIDED BY Broadlume “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND Broadlume HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM ERRORS, CORRECTNESS, ACCURACY, AND/OR RELIABILITY, AND ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.  Broadlume DOES NOT WARRANT THAT THE NETWORK, DASHBOARD, WEBSITE, DOMAIN NAME, Broadlume MATERIALS, Broadlume CONFIDENTIAL INFORMATION, THIRD PARTY MATERIALS OR ANY SERVICES PROVIDED HEREUNDER WILL MEET DEALER’S EXPECTATIONS OR REQUIREMENTS.  WITHOUT LIMITING THE FOREGOING, ALL THIRD-PARTY MATERIAL (INCLUDING WITHOUT LIMITATION ANY MANUFACTURER OR OTHER NETWORK-RELATED MATERIALS) IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND.

7.     Indemnification.

a.      Indemnification. Dealer shall defend, indemnify and hold Broadlume, the PSP and their respective parents, subsidiaries and affiliates, and their respective officers, directors, employees and agents harmless from and against any loss, liability, damage, expense or cost (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) in connection with any claims, actions, demands, suits, or proceedings, whether fixed or contingent, and whether or not adjudicated (collectively, “Claims”), arising from or in connection with any claim or allegation made or brought by a third party alleging (i) that any Dealer Materials infringe, violate or misappropriate any Intellectual Property Right of such third party; (ii) any breach by Dealer of Section 5 (Confidentiality) or Section 1 (h) (Privacy/Security); (iii) the inaccuracy, untruthfulness or breach by Dealer of any representation or warranty made by Dealer under this Agreement and (iv) Dealer’s gross negligence, recklessness, fraud or willful misconduct. 

b.     Procedure.  The applicable indemnified party shall give the indemnifying party prompt written notice of any Claim and give reasonable assistance necessary to carry out indemnifying party’s obligations under this Section 7, provided that indemnifying party shall reimburse the applicable Indemnitee’s reasonable out-of-pocket expenses incurred in providing such assistance and providedfurther that the applicable Indemnitee’s failure to promptly notify indemnifying party will affect indemnifying party’s obligations solely to the extent that the applicable Indemnitee’s failure prejudices indemnifying party’s ability to defend the applicable Claim.  The applicable indemnified party shall have the opportunity to participate in the defense and settlement of the claim at any time at indemnified party’s own expense with counsel of its own choosing.  Subject to the applicable indemnified party’s prior written consent, the indemnifying party shall have no authority to settle any Claim that gives rise to such indemnified party’s liability or fault.

8.     LIMITATION OF LIABILITY.  IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE TO Broadlume UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, THE FOREGOING SHALL NOT APPLY TO (I) A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR FRAUD; (II) A PARTY’S BREACH OF CONFIDENTIALITY; (III) DEALER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (IV) DEALER’S PAYMENT OBLIGATIONS HEREUNDER.

9.     General.

a.      Relationship of the Parties; Subcontractors.  The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.  Broadlume may utilize subcontractors to perform all or a portion of the Services. 

b.     Governing Law; Dispute Resolution.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of laws provisions.  Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the Borough of Manhattan, New York City, New York, and both parties consent to the jurisdiction of such courts with respect to any such action.  In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

c.      Assignment.  This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld; provided however that Broadlume may assign this Agreement upon written notice to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, reorganization, consolidation or otherwise).  This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.

d.     Non-Solicitation.  During the Term of this Agreement and for one (1) year thereafter, Dealer shall not, without Broadlume’s specific prior written consent in each case, directly or indirectly solicit, service, take orders from, interfere with Broadlume’s relationship with, induce, entice or encourage, or attempt to do any of the foregoing (collectively, “Solicit”) any then-current employee, contractor, customer, supplier, licensor or other partner of Broadlume or any of its affiliates; provided that the foregoing provision shall not apply to any employee of Broadlume who responds to any general advertisement or general solicitation not specifically directed towards employees of Broadlume. 

e.     Notices.  All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice.  Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. 

All notices to Dealer shall be provided to the addresses set forth in the applicable Order Form or the most-recently entered into Order Form

All notices to Broadlume shall be given to:

AdHawk, Inc.

500 Mamaroneck Avenue

Suite 320

Harrison, NY  10528

f.      Modification.  Any modifications of this Agreement must be in writing signed by a duly authorized representative of each party.

g.      Severability.  If any provision of this Agreement is held invalid or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable.

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

i.       Force Majeure.  Neither Party shall be liable for any failure to perform any of its obligations under this Agreement due to the unforeseen circumstances or causes beyond such Party’s reasonable control for the duration of such unforeseen circumstance or cause, including without limitation acts of God, acts of civil or military authorities, riot, embargoes, fire, earthquake, flood, accident, strikes and inability to secure necessary transportation, facilities, fuel, energy, labor or materials.

j.       Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.  The Agreement may also be electronically accepted or executed by both parties.

k.      Entire Agreement. This Agreement constitutes the complete agreement between the parties, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.