A. Provider is engaged in the business of providing certain products and services.
B. Corestream is engaged in the business of operating an online employee shopping portal (“ESP”) which sells various products and services from nationally known vendors at attractive prices at its website located at www.corestream.com (the “Corestream Site”). Corestream promotes and markets the products and services offered on the Corestream Site through direct marketing channels to its clients and their employees and members.
C. Provider desires to have Corestream market select products and services provided by Provider or its agents through the Corestream Site and Corestream’s direct marketing channels, and to compensate Corestream for its services, under the terms and conditions set forth herein.
NOW, THEREFORE, Corestream and Provider agree as follows:
1. DEFINITIONS
Capitalized terms have the meanings set forth below or elsewhere in this Agreement:
1.1 “Client” means any company or other entity contracting with Corestream to provide its Members or employees with access to the products and services offered through the ESP as a benefit of employment.
1.2 “Insertion Order” means the signed agreement between Corestream and the Provider relating to local advertising for a specific Client and/or set of Clients.
1.3 “Link” means a hypertext connection placed on the Corestream Site that, when selected, launches access to the designated Provider Site. The Link may be in the form of text, a product image, a button, a banner or any other format mutually acceptable to Corestream and Provider.
1.4 “Marketing Materials” means the Provider’s published promotional and technical information and materials describing its company and the Products, including but not limited to Web site contents.
1.5. “Member” means any employee or member of a Client who has been authorized to access the ESP, through the Corestream Site, as a benefit of employment.
1.6 “Parties” means the Parties to this Agreement and their successors and permitted assigns.
1.7 “Products” means the products or services of Provider or its agents, which are offered from time to time pursuant to the terms of this Agreement.
2. OPERATION OF WEBSITES
2.1 Corestream will, at its sole cost, develop, maintain and operate the Corestream Site. Provider will, at its sole cost, develop, maintain and operate the Provider Site. As between Corestream and Provider, Provider is fully responsible for all aspects of the Provider site including but not limited to: its technical operation, security, payment collection functionality, content, linking accurate, proprietary descriptions of Products from the Provider site to the Corestream site and taking all commercially reasonable measures to ensure the Provider site is available twenty-four hours a day, seven days a week, subject to reasonable downtime for maintenance.
2.2. Marketing Materials. Provider will make available to Corestream such of its Marketing Materials as are reasonably required for Corestream to promote and market the Products on the Corestream site, in a mutually agreeable manner and format. Corestream reserves the right to the editorial content in the Corestream site, provided, however, that it will not make any changes to Provider’s Marketing Materials without its prior written consent.
2.3. Trademarks. Each party will have the right to use the other Party's trade name and its trademarks and logos solely for identification purposes in performing the promotional and marketing activities described in this Agreement. Each Party further agrees to ensure that all such use will comply with the standards of display provided by the other party and to take no action that would in any way infringe or interfere with the other party's rights in its names or marks.
3. PROVIDER’S SERVICE OBLIGATIONS
3.1 Discount Offer. Provider shall make available to Corestream Members a discount, incentive, rebate or other special offer on transactions, enrollments, or redemptions that is of greater value than what Provider promotes to the general public.
3.2 Member Services. Any services provided by Provider to Members will be performed in a professional and workmanlike manner and will be of a quality conforming to the highest standards generally accepted for internet sales and for Provider’s industry. Provider shall at all times during the term of this Agreement, conform to and comply with all applicable laws, regulations, orders and other governmental requirements, now or hereafter in force, related to the Products and to the operation of the Provider Site.
3.3 Client and Member Data. Provider shall ensure that any personal data provided by Clients or Members through the Provider Site or to Provider directly via other means or otherwise generated by Provider’s business activities is collected and processed in accordance the obligations set forth in this Agreement and all applicable federal or state laws. Provider will post on the Provider Site and comply with its privacy policy which explains how Provider collects, protects, and uses personal data.
3.4. Technical and Customer Support. Provider will provide all technical support for its Products, including, but not limited to, Product specifications, selection, use and handling, instructions, and warnings. Provider shall, at its sole cost, provide toll-free phone and e-mail customer support to Clients and Members regarding the Provider site and the Products made available on such site.
3.5. Tax Liability. Provider shall collect and pay all taxes related to its operations in connection with the sale of any Products on the Provider site, including but not limited to sales, use, excise, import, export, value added, and other taxes. Provider shall indemnify Corestream against all obligations and liabilities which it may incur for any such taxes, together with any other duty of indemnification under Section 7 hereof.
4. COMPENSATION
4.1 Annual Maintenance Fee. At the beginning of the Primary Term, Provider will pay Corestream an annual maintenance fee per the Insertion Order between the Parties via credit card. If Annual Maintenance Fee is not paid within 30 days of invoice, Corestream, at its sole discretion, can remove the Marketing Materials from the Corestream Site.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall become effective on the date first set forth above and shall remain in force for one year (the "Primary Term"). At the end of the Primary Term, the Agreement shall automatically renew year-to-year (“Renewal Agreement”) unless a new agreement is executed or this Agreement is terminated by either Party upon ninety (90) days written notice prior to the expiration of the term then in effect.
5.2 Termination for Failure to Perform. Notwithstanding anything in this Agreement to the contrary, by providing written notice, Corestream may terminate this Agreement if Provider materially breaches this Agreement and fails to cure that breach within fifteen (15) days after receiving written notice of the breach.
5.3 Effects of Termination. Upon expiration or termination, all licenses granted hereunder shall terminate unless such licenses are expressly stated as surviving. Corestream shall remove the link and Marketing Materials to Provider site, and Provider shall cease all use of Corestream Trademarks. Sections 5.3, 6, 7 and 8, and any obligation to pay any owed but unpaid amounts, shall survive any expiration or termination.
6. WARRANTY DISCLAIMER, LIABILITY LIMITS
6.1 Warranty Disclaimer. Except as expressly set forth herein, the services of each Party are provided "as is" without warranties of any kind, either express or implied. Corestream makes no warranty whatsoever as to the success of Corestream’s marketing efforts set forth in this Agreement. EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein. Unless an approval process is specified herein, all deliverables provided by one party to the other shall be deemed accepted (for purposes of the UCC) when delivered.
6.2 Liability Limits. NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF A CLAIM UNDER SECTION 7 OR FAILURE TO PAY UNDER SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN THE AMOUNT PROVIDER ACTUALLY PAYS TO CORESTREAM HEREUNDER.
6.3 No Applicability of Disclaimer and Limitation to Client. The foregoing Warranty Disclaimer and Limitation of Liability shall not apply to the Products provided to Clients and/or Members by Provider.
7. INDEMNIFICATION
7.1 Provider’s Indemnification. Provider shall indemnify, defend, and hold harmless Corestream and Client against any and all claims, losses, costs and expenses, including reasonable attorneys’ fees, which Corestream or Client may incur as a result of claims in any form by third parties arising from: (a) Provider’s acts, omissions or misrepresentations to the extent that the Provider is deemed an agent of Corestream and/or Client, or (b) Provider’s breach of its privacy policy or failure to comply with applicable laws. In addition, Provider shall indemnify Corestream and Client against any and all claims, losses, costs and expenses, including reasonable attorneys’ fees, which Corestream or Client may incur as a result of claims in any form by third parties arising from the Provider Site, the Products made available on such Site, or any item or service provided by Provider to any Member. The foregoing obligations are conditioned on the indemnified Party: (i) giving Provider notice of the relevant claim, (ii) cooperating with Provider, at Provider’s expense, in the defense of such claim, and (iii) giving Provider the right to control the defense and settlement of any such claim, except that Provider shall not enter into any settlement that affects the indemnified Party’s rights or interest without the indemnified Party’s prior written approval. Corestream and/or Client shall have the right to participate in the defense at its expense.
8. GENERAL PROVISIONS
8.1 Governing Law and Venue. Any dispute arising out of or relating to this Agreement or its breach will be settled in accordance with the laws of and is subject to the jurisdiction of the State of Florida.
8.2 Notices. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed email, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile or email by the receiving Party, addressed to Corestream as set forth below and to Provider at the address set forth on the Insertion Order:
Corestream:
Empower Benefits, Inc. d/b/a
Corestream
5404 Cypress Center Dr
Suite 130
Tampa, FL 33609
Attn: CFO
8.3 Updates to Terms and Conditions. These terms may be updated from time to time by Corestream by posted an updated version. If the updates are reasonably likely to materially impact Provider to its detriment, Corestream will take reasonable measures to notify Provider of such changes. Provider’s failure to object to such updated terms within thirty (30) days of Corestream posting the changes shall be deemed Provider’s consent to such changes.
8.4 Entire Agreement. This Agreement constitutes the entire understanding between the parties and supersedes all previous agreements or negotiations on the subject matter herein, whether written or oral, and will not be modified or amended except by written agreement duly executed by the parties. Failure or delay on the part of either party to exercise any right, power, privilege, or remedy under this Agreement will not constitute a waiver thereof.
8.5 Counterparts. The Insertion Order may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A facsimile transmission of the signed Insertion Order shall be legal and binding on all Parties.
