Terms and Conditions

  1. Engagement. Company hereby engages Bouju, and Bouju hereby accepts engagement by Company, to provide general Internet monitoring services to Company and, if selected by Company, specific monitoring of the Google and Bing Search engines. Such services (the "Services") shall consist of: (a) Bouju meeting with Company in person or by teleconference to identify and determine the Company brands and focus products for which monitoring is to be performed (which are set forth on the Bouju's scope of work hereof) and the associated search parameters and priorities of Company; (b) Bouju configuring its SearchGuard® Internet monitoring system (the "System") in accordance with such identified parameters; (c) Bouju operating the System to monitor the Internet and, if applicable, Google, Bing, for Company's identified brands and products; and (d) Bouju providing Company with Internet browser access to and use of the System to view and manage the results of Bouju's monitoring services.
  2. Term and Termination. This Agreement shall remain in effect for an initial term (the "Initial Term") of 1 year following the Effective Date. Upon the date of expiration of the Initial Term, and upon each anniversary of such expiration date, this Agreement will renew for successive terms of one (1) year unless Company provides written notice ten (10) days in advance of contract expiration. This Agreement may be terminated by either party upon breach by the other party of any material term hereof and failure to pursue a remedy reasonably designed to cure such breach within ten (10) days after receipt of notice from the other party describing the breach.
  3. Compensation and Payment. Company agrees to compensate Bouju for the Services in accordance with the Services fee and payment terms set forth in Bouju's proposal to Company and on the "Pricing" page hereof. Any amount due hereunder not timely paid shall bear interest at the rate of one and one-half percent (1.5%) per month or portion thereof (or such lesser amount as may be the maximum permitted by law) that such amount remains unpaid after the due date. Bouju may suspend performance hereunder upon failure by Company to timely pay any amount due hereunder. Company shall pay any attorneys' fees and other costs incurred by Bouju in collecting any payment due hereunder. Taxes now or hereafter imposed with respect to the transactions contemplated hereunder, including but not limited to sales, use, valued-added, privilege, excise, or similar taxes, duties, or levies shall be the responsibility of Company, and if paid or required to be paid by Bouju, the amount thereof shall be added to and become a part of the amounts payable by Company hereunder.
  4. Intellectual Property Ownership. Company acknowledges that Bouju (or its affiliates) shall own and retain ownership of all right, title, and interest in and to the underlying SearchGuard® software, the System and all components and elements thereof, the Services and any work product or deliverables resulting therefrom, and any and all proprietary information and intellectual property rights associated therewith, as well as any and all enhancements, derivative works, extensions, or modifications thereto (together, "Bouju Intellectual Property"). Company obtains no right to the Bouju Intellectual Property other than as expressly set forth herein. Should Bouju become bankrupt or insolvent, any work product or deliverable that resides in the SearchGuard® system will be made available to Company at an agreed-upon price in an agreed-upon format.
  5. License. Bouju hereby grants Company a limited, nonexclusive, nontransferable license to access and use the System in accordance with its intended purposes and subject to the terms set forth herein. Any license fees that would otherwise be payable to Bouju in connection with such license shall be deemed included in the compensation described in Section 3.
  6. Restrictions on Use. Company shall not, nor shall it permit others to: (a) use the System for purposes other than its intended purposes; (b) attempt to remove, download, copy, recreate, reproduce, disassemble, reverse engineer, modify, translate, tamper with, or prepare functionally equivalent software or products to, the System; (c) assign, sell, sublicense, lease, or otherwise transfer Company's rights of use hereunder; or (d) attempt to use the System or Services to provide similar services to any affiliate of Company or otherwise in competition with Bouju.
  7. Nondisclosure. Bouju acknowledges that the Internet Monitoring and enforcement methods ultimately employed by Company and information contained in the Software shall constitute commercially sensitive and confidential information of Company. Company acknowledges that information pertaining to the System, Deliverables, Scope of Work, Products, and software, and Bouju's pricing in connection with same, is commercially sensitive and confidential information of Bouju. During the term of this Agreement and for three (3) years thereafter (or, in the case of trade secrets, as defined under applicable law, beyond such period for so long as such information constitutes a trade secret), the party in possession of the other party's confidential information (the "Receiving Party") agrees: (a) to maintain confidentiality with respect to all such confidential information of the other party, (b) to prevent disclosure of same to third parties or any separate entity that may be affiliated with the Receiving Party, and (c) to refrain from using such information in any capacity not authorized in advance in writing by the other party.
  8. Representations and Warranties. Bouju represents and warrants that it will use diligent efforts to perform the Services hereunder in a professional and workmanlike manner. Bouju assumes no liability for any damages suffered by Company, including, but not limited to, mistakes, omissions, loss of data, delays in operation or transmission, non-deliveries, deletion of files or e-mail, errors, defects, computer viruses, or service interruptions of any kind, or any failure of performance, communications failure, destruction or unauthorized access to Bouju's records, program, information or System. Bouju assumes no liability for the quality, accuracy, or validity of the data/information gathered by its System. Use of information gathered through Bouju's System is at Company's own risk. No oral advice or written information given by Bouju, its employees, agents, or third-party providers shall create a warranty or license; nor shall Company be entitled to rely on such information or advice.

    Except as set forth herein, Bouju disclaims all other representations and warranties, express or implied, including but not limited to any representations or warranties as to: merchantability, fitness for a particular purpose, or clear title; system performance levels or availability; or report data accuracy, timeliness, or reliability.

    Bouju shall not be liable for any cost or damage arising, either directly or indirectly, from Company's reliance or use of the system. Company is entirely responsible for all content that it uploads, emails or otherwise transmits via system. Bouju does not warrant that the system will be uninterrupted or error-free. Bouju does not provide any legal opinions or legal advice with respect to the results of the searches performed by Bouju. Bouju is not a law firm and does not provide legal services or opinions. Any legal questions with respect to intellectual property law should be directed to legal counsel.

  9. Limitation of Liability; Indemnification. (a) neither party shall be liable to the other for special, incidental, consequential, exemplary, punitive or other indirect damages arising out of this Agreement, even if the party or its affiliate(s) has been advised of the possibility of such damages or losses. (b) The liability of Bouju hereunder shall under no circumstances exceed the lesser of the actual damages or the amount of compensation paid by Company hereunder during the twelve (12) months preceding the establishment of such liability. (c) Company shall indemnify and defend Bouju against any claims, damages, costs, liabilities, or expenses incurred or suffered by Bouju resulting from Company's use of the System, the Services, or the information provided thereby.
  10. Force Majeure. If Bouju is delayed in or prevented from performing any obligation hereunder due to acts of God or other causes or events beyond its reasonable control, including without limitation Internet failure, such delay or nonperformance shall be excused and the time for performance extended during the pendency of such condition.
  11. Relationship of Parties. This Agreement establishes an independent contractor relationship between the parties, and nothing contained herein will be construed to create a partnership, agency, joint venture, or employer/employee relationship. Neither party shall have the right to bind or act on behalf of the other party.
  12. Notices. Any notices hereunder shall be in writing, addressed to the intended recipient at its address or email listed on the first page hereof, and delivered personally, by a reputable guaranteed overnight courier such as Federal Express, or by confirmed email transmission. Any such notice or other communication shall be deemed to be given as of the date of delivery to the intended recipient. All notices to Bouju shall be made in writing and shall be sent by mail to: Bouju Inc., 10940 Wilshire BLVD, suite 600, Los Angeles CA 90024. Bouju may modify this Agreement from time to time upon written or electronic notice to Company.
  13. Governing Law. This Agreement shall be governed by the laws of the State of California, without reference to its conflict of laws principles. In any action arising out of this Agreement, the parties consent to the exclusive jurisdiction and venue of the state and federal courts situated in Los Angeles, California for the adjudication of all such matters.
  14. Miscellaneous. This Agreement shall inure to the benefit of and be binding upon the parties and their permitted successors and assigns. Neither this Agreement nor any interest herein, or claim hereunder is assignable or transferable by either party without the express written consent of the other, provided that Bouju's rights under this Agreement may be transferred to an affiliate or to an entity that acquires control of Bouju by merger or by acquiring all or substantially all of Bouju's assets. In the event of change in control of Bouju or its parent company, Bouju can assign to acquiring company.