FAMILYSEARCH COMPATIBLE PRODUCT AFFILIATE AGREEMENT

Transcription

1 FAMILYSEARCH COMPATIBLE PRODUCT AFFILIATE AGREEMENT This FamilySearch Compatible Product Affiliate Agreement (this Agreement ) is made and entered into effective as of the day of, 20 (the Effective Date ), by and between FamilySearch International, a Utah non-profit corporation having a place of business at 50 East North Temple, Salt Lake City, Utah 84150, USA ( FamilySearch ), and, a corporation, having its principal office at ( Company ). FamilySearch and Company are sometimes referred to herein individually as a Party and collectively as the Parties. Recitals A. FamilySearch operates the website (the Website ) and provides related products and services that are devoted to genealogical and family history research (the Website, together with such other products and services, being referred to herein, collectively and individually, as the FamilySearch Products ); B. FamilySearch also makes genealogical data and tools available through: the Family History Library in Salt Lake City, Utah; thousands of family history and FamilySearch centers and affiliate libraries worldwide; facilities owned, operated, and/or under the control of FamilySearch and/or The Church of Jesus Christ of Latter-day Saints (the Church ); and educational institutions funded (at least in part) by the Church (collectively, the FamilySearch Libraries ); C. In connection with the provision and operation of the FamilySearch Products and the FamilySearch Libraries, FamilySearch has developed certain proprietary software, (the FamilySearch Software ) that allows approved third-party software programs and applications to interact with one or more of the FamilySearch Products and, at FamilySearch s sole discretion, to access and use some of the genealogical data gathered and/or developed by FamilySearch; D. Company has developed, or otherwise owns the rights to, one or more software programs, applications, and related products or services, which are specifically set forth in Appendix A, and that provide certain functionality and/or access to content related to genealogical and family history research and/or to materials provided through the Website (collectively and individually, the Company App ; wherein Appendix A is incorporated herein and can only be modified when agreed to in writing by both of the Parties); E. FamilySearch and Company desire to further test the Company App to determine which, if any, of its components are compatible with the FamilySearch Software; F. Assuming the testing demonstrates that one or more features or components of the Company App are compatible with the FamilySearch Software, the Parties desire to allow FamilySearch to make the Company App (including such compatible features and components) publicly available on, and/or accessible through, the Website (e.g., by Page 1 of 22

2 providing a link in an App Gallery (and/or any other portion) of the Website to a website that is operated by Company, that describes the Company App, and that FamilySearch, in its sole discretion, deems appropriate to list on the Website (the Company Site )); G. FamilySearch is willing to grant to Company, and Company desires to accept from FamilySearch, a limited license to use FamilySearch s name, the FamilySearch logo, the FamilySearch link logo, trademarks, and logos, including the FamilySearch Compatible logo, and any other logos explicitly described in, and in accordance with the terms set forth in, the FamilySearch Trademark and Logo Guidelines available at and/or any other FamilySearch website that FamilySearch (in its sole discretion) deems appropriate, as such guidelines may be updated from time to time by FamilySearch (collectively, the FamilySearch Trademarks ) to inform Company s customers (and potential customers) that the Company App includes one or more features that are compatible and/or interoperable with the FamilySearch Software; and H. Company is willing to grant to FamilySearch and FamilySearch desires to accept from Company, a limited license to use Company s name, trademarks, logos, and other identifiers (collectively and individually, the Company Trademarks ) to inform others of the Company App and of its compatibility and/or interoperability with the FamilySearch Software. I. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows: Agreement 1. Compatibility Testing. FamilySearch agrees to make available to Company one or more software programs, documents, guides, pieces of sample code, and/or other tools of FamilySearch s choosing (collectively, the Compatibility Assessment Tools ) that are to be used by Company to review and test the Company App for compatibility with the FamilySearch Software. As of the Effective Date, the Compatibility Assessment Tools may be accessed by Company via the following URL (or any other URL, as determined by FamilySearch): (a) It is intended that the Compatibility Assessment Tools will describe how various features of the Company App can interact with the FamilySearch Software using programmatic interfaces, XML standards, standardized interfaces, and/or other means. The Compatibility Assessment Tools may also define the specific features that the Company App may include, and the specific levels of compatibility that such features must achieve in order for a particular feature of the Company App to meet the requirements of the FamilySearch compatible web service affiliate program (the Page 2 of 22

3 FamilySearch Compatible Affiliate Program ). (b) For all versions of the Company App developed by or before the Effective Date, Company will, within ten (10) calendar days of the Effective Date, provide FamilySearch with access to such versions of the Company App, allowing FamilySearch to conduct its own testing and potential classification of such versions of the Company App. (c) A feature within the Company App that fulfills the requirements set forth in the Compatibility Assessment Tools, as determined by FamilySearch (in its sole discretion), will be referred to herein as a Compatible Feature. Upon finding that the Company App contains at least one Compatible Feature, Company will become a FamilySearch Compatible Affiliate, with all of the applicable rights and obligations of a FamilySearch Compatible Affiliate, as set forth in this Agreement. (d) Company agrees that FamilySearch may, in its sole discretion, determine an applicable classification (e.g., as set forth, and as may be modified from time to time, at or another URL as determined by FamilySearch) for the Company App, any Compatible Feature, and/or any modification to the foregoing. In this regard, Company agrees to comply with any and all restrictions and obligations that FamilySearch, at its sole discretion, associates with such a classification. Company further agrees that it will only use the Company App with the FamilySearch Software in accordance with the rights FamilySearch identifies to Company in writing from time to time, as accompanying the classification FamilySearch assigns to the Company App as set forth in this Agreement. (e) Company agrees that if, at any time after FamilySearch determines that the Company App qualifies as containing a Compatible Feature, Company chooses to update or otherwise modify the Company App, then Company will provide (unless otherwise agreed to by the Parties in writing) FamilySearch with written notice and a description of such modification of the Company App (the Modified App ) at least sixty (60) calendar days prior to any public release of the Modified App. Moreover (unless otherwise agreed to in writing by the Parties), Company agrees to provide FamilySearch with access to the Modified App such that FamilySearch is able to access, test, and otherwise review the Modified App for at least thirty (30) calendar days prior to any public release of the Modified App. In this regard, the Parties agree that as a result of such review, FamilySearch may, in its sole discretion, determine an applicable classification for the Modified App and determine whether or not the Modified App qualifies as containing a Compatible Feature. (f) If a feature of the Company App (which term also refers to the Modified App, where applicable) that Company believes is compatible with the FamilySearch Software does not fulfill the requirements to be a Compatible Feature (as determined by FamilySearch in its sole discretion), then FamilySearch may provide reasonable technical support, as determined in FamilySearch s sole discretion, to Company to assist Company in modifying the identified feature so that it might be re-evaluated. Page 3 of 22

4 2. Obligations of Company as a FamilySearch Compatible Affiliate. Company hereby agrees that immediately upon qualifying as a FamilySearch Compatible Affiliate, Company will do each of the following: (a) Agree to the terms and conditions of the FamilySearch API License, the terms of which are set forth at (or another URL, as determined by FamilySearch). In this regard, the Parties agree that FamilySearch may update the FamilySearch API License from time to time; provided, however, that FamilySearch will provide Company with ninety (90) calendar days (from the time that FamilySearch provides notice of such updates to Company) to comply with any such updates before being found in breach of this Agreement. (b) Participate with FamilySearch in business review meetings, as scheduled by FamilySearch, relating to product strategies and the future development of the Company App. (c) Participate with FamilySearch in technical reviews, as scheduled by FamilySearch, to share technology roadmaps for the Company App. (d) Unless Company opts out (as discussed below) from providing the Company App at the FamilySearch Libraries in accordance with Section 5 below, Company will provide to FamilySearch and to all patrons of any and all of the FamilySearch Libraries connecting to the Company App from a device located on the premises of any of the FamilySearch Libraries, full and free access to the Company App and to all related content, features, and data (if any) controlled by Company and pursuant to the terms of Section 5 below. 3. Obligations Regarding Products Containing Compatible Features. Where FamilySearch determines that the Company App contains one or more Compatible Features, Company (as a FamilySearch Compatible Affiliate) hereby agrees to: (a) Ensure that each Compatible Feature, the Company App, and any updates or revisions thereto (i.e., the Modified App) maintain the compatibility and interoperability required by FamilySearch and the Compatibility Assessment Tools during the entire Term of this Agreement (as set forth in Section 11). In this regard, Company acknowledges and agrees that FamilySearch may, in its sole discretion, change the Compatibility Assessment Tools at any time. Accordingly, Company agrees that if any change in the Compatibility Assessment Tools during the Term necessitates any change in a Compatible Feature, Company will make such change, at its cost, within ninety (90) calendar days of the change in the Compatibility Assessment Tools. Company further agrees that it will not advertise any version of a Compatible Feature (and/or of any other feature that does not qualify as a Compatible Feature) in a manner that would confuse and/or deceive end-users regarding compatibility with the FamilySearch Software and/or the FamilySearch Products. (b) Display the FamilySearch Trademarks in accordance with Section 19 (below) and in connection with all marketing and promotion of the Company App that includes Page 4 of 22

5 Compatible Features, including, without limitation, on any physical packaging for the Company App, on the Company Site, and in all promotional materials related to the Company App. (c) Allow FamilySearch, during the Term and free of any charge to FamilySearch, to display, advertise, discuss, blog about, address during presentations and trade shows, address in s, address in product news communications, and otherwise use the Company App (internally and publicly), including, without limitation, by providing a link from the Website (e.g., at the App Gallery or elsewhere) to a location on the Company Site that allows end-users to download and/or gain additional information on the Company App. As used in this Section 3(c), the term use does not grant FamilySearch with any right to sublicense the Company App to any third party for any use that is not explicitly set forth herein. 4. Obligations of FamilySearch. FamilySearch agrees that during the Term it will: (a) List: (i) the Company App on the App Gallery (or another portion of the Website) as being a FamilySearch Compatible Affiliate and (ii) the Company App as containing one or more Compatible Features (though different terminology for such designations may be used at FamilySearch s discretion). Moreover, if Company provides FamilySearch with a URL to the Company Site, then FamilySearch will include an electronic link on the Website to the Company Site. (b) Report to Company as reasonably requested by Company, but not more than four (4) times per calendar year, the number of times that users of the Website click an electronic link on the Website referencing the Company App. (c) Report to Company following Company s request, but not more than four (4) times per calendar year, the number of users within a given period that have transmitted data to FamilySearch using the Company App. (d) Provide, as FamilySearch deems reasonable, technical support to Company in response to data synchronization issues between the Company App and the FamilySearch Software. (e) Provide, as FamilySearch deems reasonable, technical reviews of the Compatible Features of the Company App. (f) Participate with Company in regular business reviews, as FamilySearch deems reasonable, relating to product strategies and the future development of the Company App. (g) Provide to Company, as FamilySearch deems reasonable, roadmaps that define the direction of FamilySearch s technical and marketing efforts in order to suggest possible market directions and product focus for Company. Page 5 of 22

6 (h) Permit Company to participate (at Company s option and as determined by FamilySearch in its sole discretion) in industry announcements, press releases, press conferences, and/or similar publicity and promotional events related to the FamilySearch Compatible Affiliate Program. (i) Provide to Company, as determined by FamilySearch and in FamilySearch s sole discretion, electronic copies of FamilySearch s marketing communication materials designated for the use of Company in developing promotional materials related to the Company App. 5. Use of the Company App within the FamilySearch Libraries. Unless Company expressly opts out of providing the Company App in the FamilySearch Libraries by providing a signature of an authorized representative under the Option to Opt Out Section on the Signatures page hereof, Company hereby agrees that, beginning within thirty (30) calendar days after the Effective Date and continuing throughout the Term, Company will provide to all users connecting to the Company App and/or to any of Company s websites from a device located on the premises of any of the FamilySearch Libraries, full access (at no cost to FamilySearch or to any patrons of any of the FamilySearch Libraries) to the Company App, including all features and associated materials and/or information (if any) of the Company App that Company can legally provide and that Company makes available to any other users of the Company App. Where Company has not opted out of providing access to the Company App in the FamilySearch Libraries, the Parties agree to, and acknowledge, the following: (a) Technical Information. FamilySearch agrees to make commercially-reasonable efforts to provide Company with technical information sufficient to permit Company to provide the free access to the Company App in the FamilySearch Libraries as contemplated in this Agreement. (b) Framing Permitted. Company agrees that FamilySearch may (where deemed appropriate by FamilySearch) cause the Company App to be presented within a frame in the Website and/or in a separate browsing window, at FamilySearch s sole discretion. Company agrees that it must obtain prior written permission from FamilySearch before Company may present any portion of the Website (or any portion of the information and/or materials available through the Website) within a frame (or otherwise) on any website that is owned, operated, and/or otherwise affiliated with Company or any third party. (c) No Obligation by FamilySearch. The Parties agree that any obligation of Company to provide free access to the Company App within the FamilySearch Libraries does not impose upon FamilySearch an obligation to ensure that the Company App is available to every (or any) patron, or from within every (or any) of the FamilySearch Libraries, or is supported or provided without interruption. The Parties further agree that FamilySearch may make modifications in its technical setup and/or in the presentation of any materials to its patrons as FamilySearch may deem necessary or appropriate. Upon request from Company (and where applicable), but no more than four (4) times in a calendar year, FamilySearch will make a commercially-reasonable effort to inform Company of the Page 6 of 22

7 scope of access to the Company App actually provided at any given time within the FamilySearch Libraries. (d) Training. The Parties agree that instructing patrons of the FamilySearch Libraries regarding the availability and use of commercially operated genealogical databases is generally beneficial to the interests of both of the Parties, and further agree to cooperate in facilitating such training as FamilySearch, in its sole discretion, determines to offer to its patrons. 6. Company May Seek New Customers. (a) Right to Advertise. Subject to the terms of this Agreement, when the Company App is delivered to (or received by) patrons within any of the FamilySearch Libraries under the terms of this Agreement (including, without limitation, Section 5), the Company App may include advertisements directed to those patrons. Such advertisements may include, without limitation, promotions of the Company App and/or related products and services, including product names, pricing, and/or promotions intended to encourage patrons of the FamilySearch Libraries to consider becoming commercial customers of Company. (b) Limits on Advertising. Where Company has not opted out of providing access to the Company App in the FamilySearch Libraries, Company hereby agrees to refrain from including any of the following as part of any materials delivered to patrons using the Company App from a device located at the premises of any of the FamilySearch Libraries: i. Intrusive advertising schemes that: (A) open new windows, including popups or tabs, (B) play sounds or video clips, (C) execute scripts, and/or (D) attempt to surreptitiously collect personal and/or hardware information. The following technologies will not be construed as being intrusive advertising schemes: reasonable cookies, web beacons, and/or other programs that Company determines are necessary for the functionality of the Company App, and GIF animations. ii. iii. Statements and/or other indications that FamilySearch, any of its affiliated legal entities, and/or the Church sponsors, endorses, funds, and/or otherwise promotes Company beyond what a patron may infer from the availability of the Company App within any of the FamilySearch Libraries. Advertising for any third-party products and/or services that have not been preapproved in writing by FamilySearch. In the event that FamilySearch has not responded to a written request for such preapproval within thirty (30) calendar days of submitting the advertisement in question to FamilySearch as a notice, such advertisement will be deemed preapproved. Notwithstanding anything to the contrary found herein, Company agrees that if it receives notice from FamilySearch indicating that FamilySearch, in its sole discretion, deems that any Page 7 of 22

8 advertisement, whatsoever, is potentially offensive or otherwise undesirable to FamilySearch and/or patrons of the FamilySearch Libraries, Company will immediately cease from displaying any such advertisement. iv. Statements and/or other indications that any other product or service is required in order to use the Company App within any of the FamilySearch Libraries. v. Any collection of payment information allowing for the completion of a commercial transaction while a patron is located in any of the FamilySearch Libraries. That said, the Parties agree that Company may collect limited personal information from patrons located in any of the FamilySearch Libraries who express an interest in purchasing a product or service from Company, provided that the commercial transaction is not completed in any of the FamilySearch Libraries, and is conducted in accordance with any applicable terms of this Agreement. 7. Technical Support by FamilySearch to End-Users. In order to reduce the number of technical support questions directed to Company from end-users of the FamilySearch Products, FamilySearch will take commercially-reasonable efforts to provide technical support to end-users of the FamilySearch Products between the hours of 8:00 AM and 5:00 PM, MT, Monday through Friday, excluding U.S. federal and Utah state holidays and any other days the Family History Library in Salt Lake City, Utah is closed. This technical support will not include support specific to end-users who attempt to interface with (and/or otherwise use) a Compatible Feature of the Company App, which technical support will be provided by Company in accordance with Section 8 below. 8. Technical Support by Company. Company agrees to provide technical support to all users of the Company App (including, without limitation, for end-users issues relating to any interfacing between the Company App and the FamilySearch Software) between the hours of 8:00 AM and 5:00 PM in the time zone of Company s principal office (as set forth above), every Monday through Friday, but excluding any U.S. national holidays (and state holidays in the state of Company s principal office) that are observed by Company. 9. Technical Support by FamilySearch to Company. FamilySearch will (as FamilySearch deems reasonable) provide technical support to Company for any issues originating with FamilySearch and relating (as determined in FamilySearch s sole discretion) to the interface between a Compatible Feature of the Company App and the FamilySearch Software. Such technical support will be available between the hours of 8:00 AM to 5:00 PM, MT, Monday through Friday, excluding U.S. Federal and Utah state holidays and days when the Family History Library is closed. 10. Nature of Technical Support. The Parties agree that all technical support provided under this Agreement by FamilySearch or Company will conform to the following: (a) FamilySearch and Company will each have a technical resource available to either: (i) answer calls to the telephone numbers indicated below as agreed to above and during Page 8 of 22

9 the respective Party s normal business hours (as set forth above), or (ii) respond via within one (1) business day from receipt of a relevant voice message or . (b) Each Party will permit the other Party to work with its senior support personnel named below to determine with which Party s products a given technical support issue originates. (c) The Parties agree that in the event that the support personnel of the Parties are unable, in good faith, to agree on the origin of a technical support issue, FamilySearch has the right to determine which Party will be responsible for addressing the issue. Once the support personnel of the Parties (and/or FamilySearch, as applicable) have determined the origin of a technical support issue, the Parties will direct the affected end-user to the appropriate support group for resolution of the issue. FamilySearch Senior Support Personnel: Support Manager: Name: Jimmy Zimmerman Title: Support Manager Phone: jimmy@familysearch.org Account Manager: Name: A. John Owens Title: Account Manager Phone: owensa@familysearch.org Company Senior Support Personnel: Support Manager: Name: Title: Cell: Landline: Account Manager: Name: Title: Cell: Landline: Term of Agreement; Termination. This Agreement will commence as of the Effective Date and will continue in perpetuity until terminated as set forth herein (the Term ). Page 9 of 22

10 (a) Termination for Convenience. Either of the Parties may terminate this Agreement at any time and for any or no reason upon providing sixty (60) calendar days prior written notice to the other Party. (b) Termination for Cause. Either of the Parties may terminate this Agreement for a material breach that remains uncured for thirty (30) calendar days after delivery of written notice of such breach. (c) Termination for Insolvency. If either of the Parties becomes insolvent, files for bankruptcy, ceases to do business, and/or is generally unable to meet its financial obligations, the other Party may terminate this Agreement immediately by providing written notice. (d) Cease Using Trademarks. Upon termination of this Agreement for any reason, Company will take commercially-reasonable steps to immediately cease any and all use of the FamilySearch Trademarks and will immediately cease making any reference to FamilySearch, the FamilySearch Software, and/or any FamilySearch Products that states and/or implies an association between FamilySearch and Company, and FamilySearch will take commercially-reasonable steps to immediately cease any and all use of the Company Trademarks and will immediately cease making any reference to Company, the Company Trademarks, and/or any product of Company that states and/or implies an association between FamilySearch and Company. 12. No Product Warranty (FamilySearch). NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN (INCLUDING, WITHOUT LIMITATION, SECTION 21(a)), THE PARTIES AGREE THAT THE WEBSITE, THE FAMILYSEARCH PRODUCTS, AND THE FAMILYSEARCH SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. 13. Limited Product Warranty (Company). Company hereby represents and warrants that the Company App is free from viruses, malware, and any other material defects (of any kind) and that the Company App is fit for its intended purpose (e.g., as discussed in Appendix A). 14. Limitation of Liability. EXCEPT FOR THIRD-PARTY CLAIMS UNDER SECTION 21 AND BREACHES OF SECTIONS 13 OR 21(a) HEREOF, IN NO EVENT WILL COMPANY (ON THE ONE HAND) AND FAMILYSEARCH, THE CHURCH, AND/OR ANY LEGAL ENTITY THAT IS AFFILIATED WITH FAMILYSEARCH AND/OR THE CHURCH (ON THE OTHER HAND), INCLUDING, WITHOUT LIMITATION, ANY OFFICER, EMPLOYEE, REPRESENTATIVE, AND/OR AGENT THEREOF, BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; AND/OR BUSINESS INTERRUPTION) Page 10 of 22

11 HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, AND/OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 15. Assumption of Risk. Company assumes all risks associated with its exercise of rights under this Agreement, including, but not limited to, the risks and costs of program errors, compliance with applicable laws, damage to and/or loss of data, programs or equipment, and/or unavailability or interruption of operations. 16. No Advertising or Publicizing (Company). Except as otherwise expressly provided in this Agreement, Company will not, without the prior written consent of FamilySearch: (a) use the FamilySearch Trademarks, the name of FamilySearch, and/or the name of the Church and/or any entity affiliated with the Church in any announcement, press release, and/or advertisement, and/or for any commercial purpose; (b) advertise, circularize, and/or release any information regarding this Agreement to any person, entity, organization, news agency, and/or media source; (c) name or identify FamilySearch and/or the Church, and/or provide any reference thereto, in any customer lists (except as required by applicable law); (d) provide any public use and/or recognition of this Agreement; and/or (e) provide any private use of this Agreement, such as FamilySearch being used as a reference as evidence of Company s capabilities. 17. No Advertising or Publicizing (FamilySearch). Except as otherwise expressly provided in this Agreement (e.g., in Section 3(c) or otherwise), FamilySearch will not, without the prior written consent of Company, use the Company Trademarks, the name of Company, and/or the name of any entity affiliated with Company in any press release or advertisement, and/or for any commercial purpose. 18. Confidentiality. Company agrees to exercise a commercially-reasonable level of care to preserve the confidentiality of all FamilySearch Confidential Information (as defined below) that is provided to it by (or that it otherwise obtains from) FamilySearch and will not, without the prior written consent of FamilySearch, disclose, display, or make available to any person, or use for Company s own or for any other person s benefit, other than as necessary in performance of its obligations under this Agreement, any FamilySearch Confidential Information. FamilySearch Confidential Information includes the terms of this Agreement and any nonpublic information about and/or relating to FamilySearch s finances, business strategies, present and/or future products, technical capabilities, software code, employees, vendors, customers, and/or any other information that could reasonably be deemed to be confidential and/or proprietary to FamilySearch. FamilySearch agrees to exercise a commercially-reasonable level of care to preserve the confidentiality of the materials specifically listed in Appendix B ( Company Confidential Information ) and to not, without the prior written consent of Company, disclose, display, or make available to any person, or use for FamilySearch s own or any other person s benefit, other than as necessary in performance of its obligations under this Agreement, any Company Confidential Information. Page 11 of 22

12 (a) For purposes of this Agreement, the FamilySearch Confidential Information and the Company Confidential Information (collectively and individually (as applicable) referred to herein as the Confidential Information ) does not include, and the obligations herein do not apply to, information that: (i) is now or subsequently becomes generally available to the public through no fault of the Party receiving ( Receiving Party ) the other Party s ( Disclosing Party ) Confidential Information (and/or of any employee, contactor, agent, officer, and/or other representative of Receiving Party); (ii) Receiving Party can demonstrate was rightfully in its possession prior to disclosure to Receiving Party by Disclosing Party; (iii) is independently developed by Receiving Party without the use of any Confidential Information provided by (or otherwise obtained from) Disclosing Party; and/or (iv) Receiving Party rightfully obtains from a third party who is under no obligation of confidentiality with respect to such Confidential Information. (b) Receiving Party may use or disclose the Confidential Information of Disclosing Party if: (i) Receiving Party is required by a request or order of any government authority, provided that Receiving Party will first provide notice to Disclosing Party of such requirement and, to the extent reasonable, permit Disclosing Party to contest such requirement; (ii) otherwise required by applicable law; or (iii) reasonably necessary to establish its rights under this Agreement. (c) Each of the Parties individually warrants that it has the right to disclose its Confidential Information to the other Party. Otherwise (and except as set forth in Section 13), all information is provided AS IS and without any warranty, express, implied, or otherwise, regarding its accuracy or performance. (d) Promptly upon Disclosing Party s request, Receiving Party will either return or, if requested by Disclosing Party, destroy all copies of any media or materials containing the Confidential Information of Disclosing Party, including, but not limited to, all computer programs, documentation, notes, plans, drawings, and copies thereof; provided that Receiving Party may, if it so notifies Disclosing Party, retain a limited number of copies for archival purposes only, for reference with respect to the prior dealings between the Parties. (e) Receiving Party agrees that, in the event of any breach of any confidentiality provision hereof, Disclosing Party may or will not have an adequate remedy in money or damages. Each of the Parties (as Receiving Party) therefore agrees that, in such event, Disclosing Party will be entitled to seek and (at the discretion of a court of competent jurisdiction) obtain injunctive relief against such breach, without the necessity of posting a bond, even if otherwise normally required. Such injunctive relief will in no way limit Disclosing Party s right to obtain other remedies available under applicable law (f) Pursuant to the U.S. Defend Trade Secrets Act of 2016, the Parties understand that notwithstanding anything to the contrary herein: i. An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made: (i) in Page 12 of 22

13 confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed in a lawsuit or other proceeding, if such filing is made under seal; and ii. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual: (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order. 19. Trademark Licenses and Use. (a) Upon the qualification of Company as a FamilySearch Compatible Affiliate, and subject to the terms of this Agreement, FamilySearch grants to Company (during the Term) a limited, non-exclusive, non-transferable, worldwide, and royalty-free license to use the FamilySearch Trademarks as part of promoting, marketing, selling, and operating the Company App. Company will make no other use of the FamilySearch Trademarks or of any other trademark, trade name, service mark, or other identifier of FamilySearch, the Church, and/or any of their respective affiliated entities. (b) In order to protect and preserve FamilySearch s rights in the FamilySearch Trademarks, Company understands, acknowledges, and agrees that all use of the FamilySearch Trademarks must be in accordance with the FamilySearch Trademark Usage Guidelines (set forth above), as such guidelines may be updated from time to time; provided, however, that FamilySearch will provide Company with ninety (90) calendar days (from the time that FamilySearch provides notice of such updates to Company) to comply with any such updates. (c) Every use of the FamilySearch Trademarks by Company will include in an appropriate manner a notice of FamilySearch s rights in the FamilySearch Trademarks, as reasonably directed by FamilySearch from time to time. Additionally, all usage of the FamilySearch Trademarks by Company shall inure to the benefit of FamilySearch. (d) Company will not at any time during or after the Term, do or cause to be done any act or thing challenging, contesting, impairing, invalidating, and/or tending to impair and/or invalidate any of FamilySearch s rights in the FamilySearch Trademarks or any registrations derived from such rights. (e) Company acknowledges and agrees that FamilySearch has, will retain, and may exercise, both during the Term and thereafter, all rights and remedies available to FamilySearch, whether derived from this Agreement, from statute, and/or otherwise, as a result of or in connection with Company s breach of this Agreement, misuse of the FamilySearch Trademarks, and/or any other use of the FamilySearch Trademarks by Company which is not expressly permitted by this Agreement. Page 13 of 22

14 (f) Company acknowledges and agrees that FamilySearch may (in its sole discretion, at any time, and for any or no reason), provide Company with notice revoking Company s right to use the FamilySearch Trademarks. Company hereby agrees that in such event, Company will use all commercially-reasonably efforts to immediately cease all use of the FamilySearch Trademarks. Company agrees that, except as explicitly set forth herein, Company will have no other right (or obligation under this Agreement) to use the FamilySearch Trademarks. (g) Upon the qualification of Company as a FamilySearch Compatible Affiliate, and subject to the terms of this Agreement, Company grants to FamilySearch (during the Term) a limited, non-exclusive, non-transferable, worldwide, and royalty-free license to use the Company Trademarks as part of promoting, discussing, marketing, using, and/or operating the Company App (and/or publicly indicating that the Company App is compatible with the FamilySearch Software; e.g., in accordance with Section 3(c)). FamilySearch may not make any other use of the Company Trademarks and/or of any other trademark, trade name, service mark, or other identifier of Company and/or any of its respective affiliated entities. (h) In order to protect and preserve Company s rights in the Company Trademarks, FamilySearch understands, acknowledges, and agrees that all use of the Company Trademarks must be in accordance with Company s trademark usage guidelines (if any) (which are available at ), as such guidelines may be updated from time to time; provided, however, that Company will provide FamilySearch with ninety (90) calendar days (following notice of such updates) to comply with any such updates. (i) Every use of the Company Trademarks by FamilySearch will include in an appropriate manner a notice of Company s rights in the Company Trademarks, as reasonably directed by Company from time to time. (j) FamilySearch may not at any time during or after the Term, do or cause to be done any act or thing challenging, contesting, impairing, invalidating, and/or tending to impair or invalidate any of Company s rights in the Company Trademarks or any registrations derived from such rights. (k) FamilySearch acknowledges and agrees that Company has, will retain, and may exercise, both during the Term and thereafter, all rights and remedies available to Company, whether derived from this Agreement, from statute, or otherwise, as a result of or in connection with FamilySearch s breach of this Agreement, misuse of the Company Trademarks, and/or any other use of the Company Trademarks by FamilySearch which is not expressly permitted by this Agreement. (l) FamilySearch acknowledges and agrees that Company may (in its sole discretion, at any time, and for any or no reason, provide FamilySearch with notice revoking FamilySearch s right to use the Company Trademarks. FamilySearch hereby agrees that in such event, FamilySearch will immediately cease all use of the Company Trademarks. FamilySearch agrees that, except as explicitly set forth herein, Page 14 of 22

15 FamilySearch will have no other right (or obligation under this Agreement) to use the Company Trademarks. 20. Relationship of the Parties. Notwithstanding the use of the terms affiliate, partner, and/or one or more similar terms in the text of this Agreement, on the Website, and/or anywhere else, nothing will make either of the Parties the agent or representative of the other Party, nor will the Parties be considered as joint venturers or partners for any purpose. Each of the Parties is solely responsible for all of its own employees and agents and its labor costs and expenses arising in connection therewith. Except as expressly provided herein, each of the Parties will have no right to exercise any control, whatsoever, over the activities or operations of the other Party, or to commit the other Party to any obligation or course of action. 21. General Warranty; Indemnification. (a) Ability to Enter Agreement. Each of the Parties represents and warrants on its own behalf that: (i) the execution, delivery, and performance of this Agreement do not conflict with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it may be bound, nor does the execution, delivery, and/or performance of this Agreement violate any applicable law; (ii) it will comply in good faith with all regulations and statutes that may affect any rights or obligations of the Parties hereto; and (iii) in fulfilling its obligations hereunder, it will not use any intellectual property in a manner that infringes the rights of any other party. (b) Indemnification by Company. Company hereby agrees to indemnify, defend, and hold FamilySearch, its affiliated entities, and their officers, directors, employees, agents, successors, and assigns, harmless from and against any and all claims, suits, proceedings, liabilities, losses, costs, damages, fees, and expenses, including, without limitation, court costs and reasonable attorneys fees and expenses arising out of or due to any third-party claims arising from or otherwise related to: (i) the Company App, (ii) the Company Trademarks, (iii) the infringement (or alleged infringement) by the Company App of the patent claims (and/or any other proprietary rights) of any third party, whether caused by negligence or otherwise; and/or the breach of any warranty or representation made by Company herein. (c) Indemnification by FamilySearch. FamilySearch hereby agrees to indemnify, defend, and hold Company, and its affiliated entities, and their officers, directors, employees, agents, successors, and assigns harmless from and against any and all claims, suits, proceedings, liabilities, losses, costs, damages, fees, and expenses, including, without limitation, court costs and reasonable attorneys fees and expenses arising out of or due to: (i) any third-party claims arising from Company s use of the FamilySearch Trademarks in accordance with this Agreement and/or (ii) the breach of any warranty or representation made by FamilySearch herein. (d) Conditions of Indemnification. The indemnification provided for herein is conditioned upon the Party seeking such indemnification promptly providing written notice to the Page 15 of 22

16 indemnifying Party of a claim that comes to the indemnified Party s attention. The indemnifying Party will be responsible to assume the defense and control of such matter (with counsel of its choice, which must be approved in writing in advance by the Party being indemnified) at the indemnifying Party s expense; provided, however, that the indemnifying Party will not settle any such matter without the prior written consent of the indemnified Party, which consent may be withheld in the indemnified Party s sole discretion. The Parties agree that the indemnifying Party (and its legal counsel) will keep the indemnified Party fully and completely advised of the status and progress of any such matter. The indemnified Party will reasonably cooperate with the indemnifying Party in the defense of any such matter. If the indemnifying Party does not notify the indemnified Party within thirty (30) calendar days after receipt of the notice of the claim that it is undertaking the defense of the indemnifiable claim described in the claim notice, the indemnified Party has the right to contest, settle, and/or compromise on the indemnifiable claim in the exercise of its discretion at the expense of the indemnifying Party. However, the indemnified Party must notify the indemnifying Party of any compromise or settlement of any such indemnifiable claim. The indemnified Party will have the right to participate in the settlement and/or defense through counsel chosen by the indemnified Party; provided, however, that the fees and expenses of such counsel will not be borne by the indemnifying Party. The Parties further agree that the indemnifying Party will not be liable to the indemnified Party for any legal or other expenses subsequently incurred by the indemnified Party in connection with the defense of such matter after the indemnifying Party has assumed such defense. 22. Assignment. Each Party s rights and obligations under this Agreement may not be assigned to any third party without the prior express written approval of the other Party, except that such prior approval will not be required in the case of: (a) a change of control resulting from a merger, (b) a transfer or sale of all or substantially all of a Party s assets, (c) an assignment by FamilySearch to an entity affiliated with the Church; or (d) an assignment by Company to an entity of which Company owns at least fifty percent (50%). 23. General Terms: (a) Integration. This Agreement constitutes the only and entire agreement between the Parties on the subject matter of this Agreement. This Agreement replaces and cancels all other verbal or written agreements, express or implied, which may have been contemplated or carried out in the past among the Parties and which deal with the specific subject matter of this Agreement. (b) Agreement Binding on Successors. The provisions of this Agreement will be binding upon and will inure to the benefit of the Parties hereto, their successors, trustees, or receivers in bankruptcy, and properly authorized assigns. (c) Waiver. The failure of any Party hereto to assert any of its rights hereunder, including, but not limited to, the right to terminate this Agreement in the event of a breach or default by the other Party, will not be deemed to constitute a continuing waiver by that Party of its right to thereafter enforce that provision or any other provision of this Page 16 of 22

17 Agreement in accordance with its terms. (d) Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity and enforceability of any other provision of this Agreement; provided, however, that in the event that the invalidity or unenforceability of any provision of this Agreement has a materially adverse effect on any of the rights or obligations of the Parties, the Parties will negotiate in good faith to modify this Agreement so as to effect, as closely as possible, the original intent of the Parties. In the event the Parties are not able to agree upon such modification, each of the Parties will have the right to terminate this Agreement as set forth herein. (e) Delivery of Notice. All notices required or allowed by this Agreement must be in writing and in the English language. Such notices will be sent by: (i) personal delivery with a signed acknowledgment of receipt; (ii) internationally-recognized overnight courier service with return receipt requested; or (iii) electronic mail with a physical confirmation copy sent (via first-class mail with return receipt requested) within twentyfour (24) hours after the time and date of the electronic mail transmission. Such notices will be sent to the addresses or electronic mail addresses below. All notices given in accordance with this Section 23(e) will be deemed received: (1) if sent by personal delivery, on the date the acknowledgment of receipt is signed; (2) if sent by internationally-recognized overnight courier service, on the date of receipt as evidenced by the return receipt; or (3) if sent by electronic mail, on the date the confirmation copy is received, as evidenced by the return receipt. Should either of the Parties change its address, address, or telephone number, it will promptly notify the other Party, but in no event later than thirty (30) calendar days after such change. i. All notices from FamilySearch to Company must be sent: By mail to: With a copy to: or Page 17 of 22

18 By electronic mail (as applicable and as indicated above) to: With a copy to: ii. All notices from Company to FamilySearch must be sent: By mail to: Sr. Vice President FamilySearch 50 E North Temple Salt Lake City, Utah, U.S.A. With a copy to: Berne S. Broadbent Intellectual Property Office 50 E North Temple Salt Lake City, Utah, or By electronic mail (as applicable and as indicated above) to: Stephen Valentine at ValentineSJ@familysearch.org With a copy to: Berne S. Broadbent at BroadbentB@ldschurch.org (f) Amendment. No modification or amendment to this Agreement will be binding upon the Parties unless it is contained in a written document, executed by both of the Parties, and attached hereto. (g) Governing Law and Jurisdiction. The Parties acknowledge and agree that this Agreement will be governed by and be construed in accordance with the laws of the State of Utah without giving effect to any conflict of law principles. Any legal action or other legal proceeding relating to this Agreement or to the enforcement of any provision of this Agreement may only be brought or otherwise commenced in the courts located in Salt Lake County, Utah. The Parties expressly and irrevocably consent and submit to the jurisdiction and venue of such courts in connection with any such legal proceeding. Page 18 of 22