STITCH VIDEO, INC.

DEVELOPERS AGREEMENT

This Developers Agreement (“Agreement“) is entered into by and between Stitch Video, Inc., (hereafter, “SVI“), a Delaware corporation, and the party using the service as a Developer.

            WHEREAS, Stitch Video, Inc. controls or has been granted by the original creator or relevant licensee the necessary rights in certain content for online distribution and provides advertising campaigns (“Ads” or “Creatives“) to Developers; and

 

WHEREAS, the Developer is a media (or other services) company and content owner that wishes to obtain content provision and distribution services from SVI; and

            WHEREAS, Developer desires to run the Ads or Creatives on: (i) Developer’s websites (including websites on which Developer has the right to place Ads); (ii) mobile applications; and/or (iii) connected TV applications or storefronts ((ii) and (iii) may be referred to collectively as the “Apps“; (i), (ii) and (iii) may be referred to collectively as the “Sites“); and

            WHEREAS, SVI offers Developers additional services which it may provide from time to time, as agreed upon in writing by the Parties.

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:

  1. SVI’s Platform
  • Terms. Upon request, Developer will deliver Ads provided by SVI on behalf of one or more third party advertisers or a third party advertising agency to the Sites and/or Apps for the benefit of such third party advertiser or third party advertising agency. Upon acceptance of the Ads and subject to the terms and conditions of this Agreement, Developer will use commercially reasonable efforts to display the Ads on the Sites.
  • Integration. Developer acknowledges that certain aspects of this Agreement require the integration of advertising instructions and code (sometimes referred to as “tags” or “sdk”) into Developer’s video player, mobile or connected TV applications, advertising management system, and possibly content management system. Developer and SVI will therefore work together in good faith to incorporate such appropriate “tags” or “sdk” as determined by SVI and Developer management, and to address any other technical issues relating to the integration of SVI’s service into the Sites.

(c) Services. Developer understands and agrees that from time to time the SVI’s ad serving services may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which SVI may undertake from time to time; or (iii) other causes beyond the control of SVI, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While SVI will attempt to provide the services on a continuous basis, Developer acknowledges and agrees that SVI has no control over the availability of the services on a continuous or uninterrupted basis. Developer also understands and agrees that SVI is not responsible for the functionality of any third-party website or interface. Failure to deliver because of technical difficulties does not represent a failure to meet the delivery obligations of this Agreement.

(d) Adherence to Developer Terms. The Parties agree that Ads will be delivered, counted and compensated in accordance with the Developer Terms and Conditions set forth on Schedule A of this Agreement.

  1. Website Content and Prohibited Conduct

(a) Prohibited Conduct. Developer shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source codes, links, pixels, modules or other data provided by or obtained from SVI that allows SVI to measure ad performance and provide its service. When Developer makes a programmatic advertising call to SVI, if SVI responds with an available paid Ad, Developer agrees to deliver said Ad. Developer will not edit or modify the submitted Ad in any way, including, without limitation, resizing the Ads, without the prior approval of SVI. Developer agrees to deliver all Ads in conformity with SVI’s advertising guidelines: Ads shall not be placed on websites that: (i) contain content; (ii) promote; and/or (iii) advertise any of the following products: tobacco, illegal controlled substances, alcohol, pornography, or illegal gambling. Ads shall not be placed on websites that contain or promote libelous, defamatory, lewd and lascivious, abusive, excessively violent, bigoted or hate oriented behavior. Ads cannot be placed on any unlicensed or copyright infringing content. Ads shall not knowingly be placed on websites that contain 1) software piracy (including but not limited to Warez, Cracking, etc.) hacking, phreaking, emulators, ROMs, or illegal MP3 activity, or 2) illegal activities, deceptive practices or violations of the intellectual property rights of a third party.

(b) Approval of Content. Developer is under no obligation to accept any creative, promotional or advertiser content provided by SVI for display within Developer’s players. SVI shall review and approve all creative, promotional and advertiser content for conformance with Developer’s advertising guidelines, as provided to SVI from time to time; however, Developer reserves the right to reject, omit or refuse any creative, promotional or advertiser content for display within Developer’s players. Developer further reserves the right to request SVI to remove any creative, promotional or advertiser content on display within Developer’s players, with the understanding that it will not be compensated for the un-served balance of such campaign; provided that, if Developer has reviewed and approved such content prior to their display, Developer may not immediately remove such content before making commercially reasonable efforts to obtain mutually acceptable alternative content from SVI.

  1. Pricing

(a) Pricing Terms. SVI will pay Developer in accordance with the applicable agreement between SVI and Developer regarding the payment of certain amounts by SVI to Developer. If not otherwise agreed upon in writing, SVI’s standard revenue share will apply. SVI may adjust payments to Developer hereunder for refunds or credits provided to advertisers or agencies for such Ads or if such parties fail to pay SVI for such Ads. SVI will only pay Developer for valid traffic and valid advertising impressions. SVI shall use its reasonable judgement in detecting and measuring invalid traffic through various methods, including, but not limited to, its proprietary methods and third party validation tools. SVI shall notify Developer promptly of instances when invalid traffic is detected and any adjustments will be made as soon as practical.

 

(b) Payment Terms. All payments due and owing to Developer by SVI pursuant to this Agreement shall be paid within seventy-five (75) days of the end of each month in which such the underlying fees are collected by SVI. If the amount accrued is less than $500(USD), payment will be deferred until the month in which the cumulative balance owed to Developer exceeds $500 (USD). For Developers located outside the United States of America who choose to be paid by Wire Transfer, payment will be deferred until the month in which the cumulative balance owed to Developer exceeds $500 (USD). Accounts that are terminated with less than $100 (USD) accrued will forfeit the unpaid amounts. Payment processing and delivery can take from 1-15 days to be received by Developer once initiated. SVI will deliver to Developer, or make available via the Internet, a report which will show in reasonable detail the basis and computation of payments due to Developer from SVI under this Agreement, if any, due or credited to Developer for such monthly period.

(c) Activity Reports. SVI will make daily reports available at http://www.stitchvideo.tv/reports or through managed services. Payments will be based upon the impression numbers which SVI records, and will be made in United States Dollars.

  1. Representations, Warranties and Covenants
  • Corporate. Each Party represents and warrants at all times that: (i) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation; (ii) it has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (iii) it is duly authorized to execute and deliver this Agreement and duly authorized to perform its obligations and exercise its rights hereunder; (iv) this Agreement is a legal and valid obligation, binding and enforceable in accordance with its terms; (v) the execution, delivery and performance of this Agreement does 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 violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and (vi) it will comply at all times with all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
  • No Infringement. Each Party represents and warrants that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, to exercise its rights hereunder and to grant the licenses granted by it under this Agreement.
  • Privacy. Each Party represents and warrants that it will comply with: (i) all applicable laws, governmental regulations and court or governmental agency orders, decrees and policies relating in any manner to the collection, use or dissemination of information about users or otherwise relating to privacy rights, (ii) any written agreements with non-governmental certification bodies, including but not limited to Network Advertising Initiative, and (iii) such Party’s posted privacy policy, as amended from time to time, with such privacy policy to include any and all disclosures and election procedures that may be required under applicable laws in light of the activities contemplated by this Agreement. Developer represents and warrants that: (x) Developer will comply with all applicable laws and regulations related to Children’s Online Privacy Protection Act of 1998 and its rules, as the same may be amended from time to time (collectively, “COPPA”); (y) except as specifically set forth in a notice described in this section, the Sites are not directed to children under the age of thirteen and Developer does not have actual knowledge that the Sites collect personal information from children under the age of thirteen; and (z) Developer shall not collect or pass to SVI any personal information for any purpose not permitted under COPPA. Developer shall provide prompt written notice to SVI if the representations in the foregoing subsection (y) are, or become, untrue with respect to any Site; provided, however, that no such notice shall relieve Developer of its obligations pursuant to such representations until such notice is received by SVI. Developer further represents and warrants that in addition to the foregoing it has and shall maintain a privacy policy that: (A) fully and completely discloses to users of the Sites the practices of Developer, SVI or third parties with respect to the collection, use and disclosure of data and other information (including, but not limited to, personally identifiable information), including for advertising purposes on the Sites, through the use of cookies and similar methods; (B) discloses that Developer allows third parties to serve advertising within the Sites; and (C) provides a clear and conspicuous opt out to the NAI opt-out page, which is currently located at http://www.networkadvertising.org/managing/opt_out.asp.
  • Ads and Creatives. SVI represents that it has paid all license fees and/or other fees required to be paid to third parties for performance of SVI’s obligations or exercise of SVI’s rights under this Agreement (“SVI License Fees”) and SVI covenants to timely pay any SVI License Fees required to be paid in the future. SVI further expressly agrees that, as between SVI, on the one hand, and Developer on the other hand, any obligation to pay SVI License Fees as a result of distribution of the Ads and Creatives pursuant to this Agreement shall be SVI’s obligation and not the obligation of Developer.
  • Content. Developer represents and warrants to SVI that the Sites shall not contain or promote any information or content that is illegal, contrary to any industry code, indecent, obscene, defamatory, threatening, harass, discriminatory, in violation of third party intellectual property, privacy or publicity rights. Developer represents that it has paid all license fees and/or other fees required to be paid to third parties for performance of Developer’s obligations or exercise of Developer’s rights hereunder, for the grant of the licenses hereunder, and for any other act by Developer under this Agreement (“Developer License Fees”) and Developer covenants to timely pay any Developer License Fees required to be paid in the future. Developer further expressly agrees that it owns or has appropriate license to the content on its website, and any Developer License Fees required for Developer content are Developer’s obligation and not the obligation of SVI.
  • Disclaimer of Warranties. ALL SERVICES PROVIDED BY SVI ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SVI MAKES NO WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING BY TRADE USAGE OR COURSE OF DEALING OR PERFORMANCE, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
  1. Licenses; Marketing and Promotion

(a) License to Display Ads and/or Creatives within Developer Players. SVI hereby grants Developer a non-transferable, royalty-free, non-exclusive, worldwide license to display the Ads and/or Creatives within Developer’s players, or Apps, wherever the players may reside, and to perform any such additional acts in connection with the Ads and/or Creatives as are necessary to provide the Developer’s service to its customers and end-users.

(b) Promotional Materials. Subject to the terms and conditions of this Agreement, Developer and its partners grant SVI, and SVI grants Developer the non-transferable, non-exclusive, royalty-free, worldwide right to display the other’s logos, trademarks, trade names and other similar identifying material (the “Marks”) solely for the purposes, in the case of SVI, of inclusion in marketing and other materials promoting Developer and its partners to advertisers, excluding press releases (which are governed by subpart (d) below), related to this Agreement (the “Promotional Materials”). SVI shall have the right to continue using such Promotional Materials during the term of this Agreement. During the term of this Agreement, neither Party shall have the right to include the other’s name or logo on its corporate website without the other Party’s prior written approval.

(c) Ownership/Reservation of Rights. Each Party retains any and all pre-existing right, title and interest in and to its Site/s, Marks, intellectual property, Ads and Creatives (in the case of SVI), the Developer’s players (in the case of Developer), and all components thereof. SVI shall own all data collected in connection with this Agreement, including, without limitation, any reports, results, or information created complied, analyzed or derived from such data. This Agreement shall not be construed in any manner as transferring any rights of ownership of or license to the foregoing, and/or to the features or information therein, except as expressly set forth in this Agreement. All rights not expressly granted are reserved. Under no circumstances will this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any intellectual or other property or components thereof other than as specifically granted in this Agreement.

(d) Press Releases. During the term of this Agreement, the Parties shall have the right to include the other’s name in a press release announcing the entry into of this Agreement, subject to the other Party’s prior written approval which such approval shall not be unreasonably delayed, conditioned or withheld.

(e) Identification of Ad Placements. Developer will provide and will regularly update SVI with the attributes of each of the placements where it intends to run ads provided by SVI (“Ad Placement Descriptions”) Ad Placement Descriptions will include the URL of the web page or equivalent or mobile application on which the placement exists; whether the placement is owned by Developer or has been syndicated to a third party; whether the placement is display, instream pre-roll, instream mid-roll, instream post-roll, or autostart; whether the placement includes a synchronized companion banner; the category of content to which the placement is adjacent; will specify incentivized offers or traffic: and other attributes which may be requested by SVI from time to time. Ads appearing on connected TV devices that are not in application will appear center screen. Ads that appear on mobile applications and connected TV applications will also be placed such that the end user does not need to navigate in order to see the Ad. Further, under no circumstances shall Developer be permitted to run ads in placements that i) are below-the-fold and autostart; or ii) by default (i.e., without user interaction) do not play the sound track of the advertisement; or iii) autostart and are presented or located in such a manner that would make it unlikely that the ads would be viewed by humans, whether or not the sound is defaulted to off; or iv) are located in downloadable applications (unless the application is available for download in an officially recognized product website, or a mobile / connected device application store, such as the Apple iOS App Store, Android Market or connected TV stores on devices such as Sony PS, Samsung Smart TV); or v) are located in pop-up/pop-under windows; or vi) are placed in a continuous loop of video advertisements; or vii) are stacked videos on top of one another; or viii) have more than one video player on one page at one time playing an advertisement or ix) make multiple ad requests in parallel from the same video player; SVI reserves the right to deny payment to Developer based upon placements that SVI, in its sole determination, discovers have run in that are not consistent with the Ad Placement Description provided by Developer or that are not consistent with SVI’s Developer requirements.

(f) Traffic Quality. The Sites shall not i) contain content that promotes any illegal or dangerous activity; ii) contain content with foul, vulgar, obscene or defamatory language or images; iii) run SVI ads next to or before pornographic content; iv) create “forced visit” traffic; v) create invisible or nested IFrames loading pages or ads; vi) intentionally falsify clicks: vii) modify or obscure display of ads; viii) fraudulently generate requests or clicks; or ix) use any means of artificially generating ad impressions or clicks, including third-party services such as paid-to-click, paid-to-surf, auto-surf, and click-exchange programs.

  1. Data Collection, Usage and Protection

Each Party agrees to comply with the Digital Advertising Alliance Self Regulatory Principles for Online Behavioral Advertising with respect to its data collection, usage, ownership and disclosures. Where any content is made available to any individual in the European Union, both Parties will duly observe all their obligations under European data protection legislation, in particular Directive 95/46/EC, Directive 2002/58/EC and Directive 2009/136/EC as implemented nationally, and any other relevant data protection and privacy laws which may arise in connection with this Agreement. Notwithstanding the generality of the foregoing, the Developer agrees to bear sole responsibility for obtaining the lawful consent of any user whose equipment is accessed or used for the storage of a cookie or similar technology for the provision of SVI’s services in accordance with this Agreement.

  1. Indemnification

 

SVI shall defend, indemnify and hold harmless Developer and its affiliates and each of its respective officers, directors, employees, and agents (each a “Developer Indemnified Party”) from and against any demand, or any civil, criminal, administrative, or investigative claim, action, or proceeding (including arbitration) asserted, commenced or threatened against an entity or person (a “Claim”) brought by a third party, regardless of the merit of such Claim, to the extent that it is based on any assertion arising out of a breach or alleged breach of SVI’s obligations under Section 4 (“Representations, Warranties and Covenants”) or Section 16 (“Confidentiality”) of this Agreement. SVI shall pay all judgments, awards, settlements, liabilities, damages, liens and claims, and all related costs, expenses and other charges suffered or incurred as a result of or in connection with a Claim, including reasonable attorneys’ fees and disbursements, costs of investigation, litigation, settlement and judgment, and any taxes, interest, penalties and fines with respect to any of the foregoing (“Losses”) incurred by Developer with respect to any Claim subject to indemnification hereunder.

Developer shall defend, indemnify and hold harmless SVI and its officers, directors, members, agents, employees (the “SVI Indemnified Parties”) from and against any Claim brought by a third party, regardless of the merit of such Claim, to the extent that it is based on any assertion arising out of: (a) a breach or alleged breach by Developer of this Agreement; or (b) Section 16 (“Confidentiality”). Developer shall pay all Losses incurred by SVI with respect to any Claim subject to indemnification hereunder.

If any claim or action is asserted that would entitle a Party to indemnification pursuant to this Section 7 (a “Proceeding”), the Party who seeks indemnification will give written notice thereof to the other Party (the “Indemnitor”) promptly (and in any event within fifteen (15) calendar days after the service of the citation or summons); provided, however, that the failure of the Party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that Indemnitor demonstrates actual damage caused by such failure. Indemnitor may elect to direct the defense or settlement of any such Proceeding by giving written notice to the Party seeking indemnification, which election will be effective immediately upon receipt by the Party seeking indemnification of such written notice of election. The Indemnitor will have the right to employ counsel reasonably acceptable to the Party seeking indemnification to defend any such Proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor will not settle, or consent to any entry of judgment in, any Proceeding without obtaining either: (i) an unconditional release of all the Party seeking indemnification (and its Affiliates and each of their respective officers, directors, employees and agents) from all liability with respect to all claims underlying such Proceeding; or (ii) the prior written consent of the Party seeking indemnification. A Party seeking indemnification will not settle, or consent to any entry of judgment, in any Proceeding without obtaining the prior written consent of the Indemnitor. The Parties will fully cooperate with each other in any such Proceeding and will make available to each other any books or records useful for the defense of any such Proceeding.

 

  1. Term and Termination

(a) Term. This Agreement, as may be amended, is perpetual for Developer for as long as Developer distributes Ads or Creatives for SVI.

(b) Termination by SVI. Upon 30 days written notice to Developer, SVI shall have the right to terminate this Agreement at any time, with or without cause. Notwithstanding the previous sentence, SVI reserves the right to terminate this Agreement at any time without notice, if SVI in its sole discretion determines that Developer is using the SVI services in a manner that may be construed as illegal, unethical, defamatory or that otherwise may reflect negatively upon SVI’s reputation or that of SVI’s customers.

(c) Termination by Developer. Developer reserves the right to terminate this Agreement upon 30 days written notice to SVI at any time, with or without cause, and to cease display of any Ads or Creative within Developer’s players, wherever the players may reside.

(d) Post-termination. Upon termination, Developer agrees to remove from its players any and all SVI ad serving code supplied to Developer by SVI. Developer will be paid, in the next scheduled payment cycle following termination, all payments due through and including the time of termination.

  1. Governing Law/Venue/Jurisdiction/Attorneys’ Fees

 

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 principles. For all matters arising under this Agreement, the parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York, and waive any jurisdictional, venue or inconvenient forum objections to such courts. The prevailing party in any litigation shall be entitled to recovery of its reasonable attorneys’ fees from the other party in addition to any other award of damages from the court.

  1. Notice

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

 

11. Assignment

No rights or obligations under this Agreement may be assigned by SVI or Developer without the prior written consent of the other, except that either Party may assign its performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the other Party’s prior written consent in the case of a merger, acquisition or other change of control (as that phrase is interpreted under Delaware law). Any assignment, transfer or attempted assignment or transfer in violation of this Section 11 shall be void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
12. Force Majeure

Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

13. Survival and Severability

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.

14. Remedies and Waiver

Except as otherwise specified herein, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. Failure of either Party to require strict performance by the other party of any provision shall not affect the Party’s right to require strict performance thereafter. Waiver by either Party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

15. LIMITATIONS AND EXCLUSIONS OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF AMOUNTS PAYABLE BY SVI PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTH PERIOD LEADING UP TO THE CLAIM.

16. Confidentiality

All information, including the terms of this Agreement, pricing, programs, brochures, reports, technical information, mailing lists, and other such information of any nature made available to either Party by the other Party, by virtue of the association hereunder, and any information disclosed by SVI, in whatever form (the “Confidential Information”) shall be held in strict confidence and neither Party shall disclose any such Confidential Information to any other person or Party without the written consent of the other Party. The receiving Party shall take reasonable measures to maintain the confidentiality of the Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of a similar nature. The receiving Party shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations hereunder, and as permitted by, this Agreement.

The receiving Party may disclose the Confidential Information to its employees or consultants with a need to know for the performance of this Agreement (subject to disclosure restrictions comparable to those set forth herein), and shall remain responsible for all use of the Confidential Information by such employees or consultants. Furthermore, the receiving Party may disclose the Confidential Information (i) to the extent required by law or pursuant to the order or requirement of, or in connection with proceedings before, a court, administrative agency or other governmental body, provided that before such disclosure is made receiving Party has, to the extent permissible by law, made reasonable efforts to notify the disclosing Party of the intended disclosure to allow the disclosing Party an opportunity to object to the disclosure; and (ii) to the extent required and on a confidential basis to its legal and/or financial advisors.

Confidential Information shall not include information that (i) is or becomes generally known to the public through no breach of any confidentiality obligation; (ii) is rightfully known to the receiving Party at the time of disclosure by the disclosing Party without violation of any confidentiality restriction and without any restriction on the receiving Party’s further use or disclosure; or (iii) is independently developed by the receiving Party without any use of or reference to the disclosing Party’s Confidential Information.

The Parties acknowledge that in the event of a breach of this Section 16, substantial injury could result to the disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the receiving Party engages in, or threatens to engage in any act which violates any provision of this Agreement, the Parties agree that the non-breaching Party will have no adequate remedy in money or damages, and, accordingly, shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. The non-breaching Party shall not be required to post a bond or other security in connection with the granting of any such relief. The provisions of this Section shall survive expiration or other termination of this Agreement.
17. Independent Contractors

SVI and Developer are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship between SVI and Developer, and neither Party has authority to enter into agreements of any kind on behalf of the other.

18. No Modification Unless in Writing

Except as specifically and expressly addressed in any amendment executed by the Parties, the terms and conditions of this Agreement in effect between the Parties shall govern.