Marketing Terms and Conditions

These Terms and Conditions in conjunction with the applicable Statement of Work (the “SOW”) serves as the Marketing Services Agreement (the “Agreement”) is made as of the Effective Date in the applicable SOW and entered into by and between Client and Nautech Guam Corporation. (doing business as Nautech Travel Services and referred to herein as NAUTECH) (together the “Parties”) to work together in furtherance of the Marketing Services set forth in the attached applicable SOW(s).

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

1. Services. NAUTECH shall provide the Services in accordance with the terms and conditions set forth herein and as more specifically described in the attached applicable SOW(s).

2. Agreement. This Agreement, together with the attached applicable SOW(s), constitutes the entire agreement between the Parties with respect to the matters addressed herein, and may not be modified or amended except by a duly executed written amendment, or except as otherwise expressly provided in an applicable SOW(s).
3. Representations and Warranties.
a. Each party to this Agreement represents and warrants to the other party that: (i) such party has the necessary and full rights, consents and authority to enter into this Agreement and to perform its obligations hereunder (including, providing any right and/or license grant); (ii) the execution and performance of this Agreement by such party does not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party.

b. Each party acknowledges that the other party does not guarantee the sequence, accuracy, completeness, or timeliness of the data and information provided hereunder. Accordingly, anything to the contrary herein notwithstanding, neither party, nor their affiliated companies, and their officers and employees, parents, subsidiaries, successors, and assigns shall be liable, directly or indirectly, in any way, to the other party, or to any other person or entity for: (i) any inaccuracies or errors in or omission of any information or data therein; (ii) any delays or errors in the transmission or delivery of any part thereof; or (iii) any loss or damage arising therefrom or occasioned thereby, or by any reason of nonperformance, or interruption in any such information or data transmitted by either party or their affiliated companies for any reason.

4. Mutual Indemnification. Each party (“Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party (and its affiliates, and their officers, directors and employees) from and against all claims, demands, liabilities, suits, damages, costs and expenses of every kind and description, including penalties and reasonable attorneys’ fees, resulting from any claim, action or proceeding brought by a third party that its intellectual property or other proprietary rights were infringed or misappropriated by the Indemnifying Party.

5. Limitation of Liability.
a. NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED WITH RESPECT TO CLAIMS UNDER THIS AGREEMENT; PROVIDED THAT THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO (A) ANY INDEMNIFICATION OBLIGATIONS HEREUNDER, (B) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, OR (C) BREACHES OF ANY CONFIDENTIALITY REQUIREMENTS.
b. NAUTECH’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE NAUTECH REVENUE (DEFINED BELOW) IN CONNECTION WITH THE SERVICES GIVING RISE TO THE LIABILITY AND IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE SERVICES GIVING RISE TO SUCH LIABILITY. “NAUTECH REVENUE” MEANS THE REVENUE RECEIVED BY NAUTECH FROM CLIENT FOR THE SERVICES GIVING RISE TO THE LIABILITY, LESS ANY OF NAUTECH’S COSTS, EXPENSES AND FEES EXPENDED TOWARDS SUCH SERVICES.

6. Relationship. Each party is an independent contractor of the other, not a partner, agent or joint venturer and as such shall provide and maintain its own Worker’s Compensation Insurance on all its own employees. No further business relationship is inferred beyond the terms of this Agreement and neither party shall hold itself out contrary to these terms by advertising or otherwise, nor shall either party be bound by any representation, act or omission whatsoever of the other. Nothing in this Agreement precludes either NAUTECH or Client from creating, directly or indirectly, other copyrightable audio, video or other content on the same subject matter as the content within the scope of this Agreement, or engage in other activities related to this subject matter.

7. Confidentiality and Data.
a. Confidential Information. All information contained in this Agreement, including, but not limited to, pricing and/or fees for the Marketing Services, will remain proprietary and confidential. Furthermore, each Party agrees to keep confidential, using the same level of care as such non-disclosing Party would treat its own confidential information, any additional information of the other Party to which such non-disclosing Party becomes privy during the course of performing its duties hereunder. Notwithstanding the foregoing, a party may disclose the confidential Information of the other party to any court or regulatory authority of competent jurisdiction if the disclosure is required by law or by an order of such court or regulatory authority, provided that if legally permissible, as much notice as is reasonably possible shall be given to the other party before to such disclosure.
b. Data. Each party agrees that any personally identifiable data it obtains pursuant to the Agreement shall be collected, used, stored, and disclosed in accordance with all applicable laws and regulations regarding data privacy, consumer data, privacy protection, etc., as well as such party’s standard privacy policy, which each party agrees is consistent with all industry standards regarding the same.

8. Intellectual Property.
a. Names and Marks. Each Party grants to each other the right and license to use its respective names, marks and IP as set forth in the applicable SOW(s), solely for the uses described in the applicable SOW(s). Other than the above, each Party agrees not to use the other’s names, marks or other IP without such other Party’s specific prior written permission, including, without limitation, use in client lists and promotional materials. Neither Party shall acquire any right or license by virtue of this Agreement in or to each other’s names or marks, other than the limited right to publish and distribute them solely in accordance with the terms of this Agreement.
b. Non-Infringement. Each Party represents and warrants to the other that the material it furnished or furnishes pursuant to this Agreement does not and will not violate any rights of copyright, property, trademark or service mark, or rights or privacy or publicity of any third party, or violate any local, state or federal statute or regulation, or contain any matter that is libelous or would be injurious to the user.
c. Releases. Each Party represents and warrants to the other that it has obtained all necessary releases and license from any person or entity whose name, picture, likeness, voice, trademark, trade name, logo, proprietary materials or property appears in the material that it furnished, and that it has paid or shall promptly pay when due (or third parties have paid) any and all residuals, reuse, royalty payments and other fees, taxes, charges or compensation of any kind, however denominated, that are due or may become due by reason of the other Party’s full exercise of any and all of its rights hereunder, with the other Party to have no responsibility or liability therefor.
d. All Rights Reserved. All rights, title and interest with respect to a Party’s IP shall remain the sole and exclusive property of the original Party, and such Party shall have the continuing right to freely exercise any and all such reserved rights, title and interest throughout the world at any time without prior notice or any obligation to the other Party whatsoever.

9. Insurance. Each Party represents and warrants to the other that it currently has and will maintain insurance coverage of a kind and in an amount that is commercially reasonable to cover its activities and the performance of its obligations under this Agreement.

10. Governing Law. This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the laws of GUAM regardless of the laws that might otherwise govern under applicable choice-of-law principles. The parties hereto, their successors and assigns, consent to the jurisdiction of the courts located in GUAM, with respect to any legal proceedings that may result from dispute as to the interpretation or breach of this Agreement and each party hereby waives any objection to the propriety or convenience of venue in such courts.

11. No Waiver. The failure of either Client or NAUTECH to enforce or exercise any right under this Agreement shall in no way be construed to be a waiver of such right to insist upon strict compliance with the obligations or the terms herein.

12. No Assignment. Client may not assign this Agreement or any right or obligation hereunder without the prior written consent of NAUTECH.

13. Severability of Clauses. The terms of this Agreement are severable such that if any term or provision is declared by a court of competent jurisdiction to be illegal, the remainder of the provisions shall continue to be valid and enforceable.

14. Force Majeure. Neither Party shall be deemed in breach or default of this Agreement or any provision hereunder to the extent that any delay or failure in the performance of its obligations results from an act of God or public enemy, civil unrest, fire, flood, earthquake or unusually severe weather beyond its reasonable control and without its fault or negligence.

15. Facsimile; Counterparts.This Agreement and any modifications, waivers or notifications relating thereto may be executed and delivered by facsimile or electronic mail, which shall constitute the final agreement of the parties and conclusive proof of such agreement. The Parties may sign in counterparts, and such counterparts, taken together, shall constitute the full and complete agreement.

16. Survival. Provisions that by their terms or nature are intended to survive the performance, termination or expiration of this Agreement shall survive and shall continue in full force and effect including, without limitation, indemnification, limitations of liability and confidentiality provisions.

17. Termination. In the event that either party to this Agreement shall fail to perform or observe any material term, covenant, agreement or warranty or if any representation contained herein is untrue, the other party may immediately terminate this Agreement if such failure is not corrected within ten (10) business days after delivery of written notice thereof to the party in default.

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