MASTER SERVICES
AGREEMENT

EMarketer
6636 W. Bancroft St
Toledo, OH 43615
AGREEMENT BETWEEN YOU AND EMarketer
IMPORTANT-READ CAREFULLY: This Terms of Service / Master Services
Agreement (this “MSA”, “Terms of Service”) is binding and enforceable
between you (“CUSTOMER”) and EMarketer. These Terms of Service / MSA
govern your access to and use of EMarketer’ website (the “Site”), any
information, text, graphics, or other materials created and/or provided
by EMarketer and appearing on the Site (the “Content”), Products (as
defined below), Platform (as defined below) and any services and/or
software provided through the Site or by EMarketer (the “Services”).
These Terms of Service / MSA limit EMarketer’ liability and obligations to
you, grant EMarketer certain rights and allow EMarketer to change,
suspend or terminate your access to and use of the Site, Content, Files
and Services. Your access to and use of the Site, Content, Files and/or
Services are expressly conditioned on your compliance with these
Terms of Service / MSA. By accessing or using the Site, Content, Files
and/or Services you agree to be bound by these Terms of Service / MSA.
YOU UNDERSTAND THAT BY SIGNING OR CLICKING THE “I AGREE” BUTTON, BY
USING THE SITE, CONTENT, FILES AND/OR SERVICES OR YOUR ACCOUNT YOU
ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE / MSA. IF YOU DO
NOT ACCEPT THESE TERMS OF SERVICE / MSA IN THEIR ENTIRETY, YOU MAY
NOT ACCESS OR USE THE SITE, CONTENT, FILES OR SERVICES. You are
specifically agreeing to a limit of our obligations and liability as
referenced in the following Sections: Us of Site at Your Own Risk,
EMarketer is Available “AS IS” and Limitation of Liability. Further, you are
specifically agreeing to arbitration, on an individual basis, in the event of
a dispute between us in the following Section: Controlling Law,
Arbitration, Class Action Waiver and Jurisdiction. If you agree to these

Terms of Service / MSA on behalf of a business, you represent and
warrant that you have the authority to bind that business to these
Terms of Service / MSA and your agreement to these terms will be
treated as the agreement of the business. In that event, “you” and “your”
will refer and apply to that business.
This MSA includes the General Terms and Conditions set forth on the
following pages and all terms and conditions set forth in all Product
Addenda specific to the Products purchased as part of Your
subscription. Product Addenda, as well as the most current version of
this MSA, are available for review at
https://www.fullserviceemailmarketer.com/legal. The parties’ complete
agreement with respect to the subject matter set forth in the Order
Forms, or Online Subscription executed by the parties during the Term
includes this MSA (including all applicable Product Addenda) and all
such Order Forms or Online Subscription, all of which shall be hereinafter
referenced as the “Agreement”. You expressly agree that the terms and
conditions of this MSA shall govern all Products and Services provided to
You during the Term and are a material part of EMarketer’ agreement to
provide such Products and Services, whether or not the same is made
express at the time of provision.
EMarketer hereby agrees to make the Products and/or Services
described in each Addendum or subscription hereto available to You,
and You agree to purchase such Products and/or Services from
EMarketer, subject to the terms and conditions of the Agreement.
This MSA was last updated on March 1, 2017. It is effective between You
and EMarketer as of the date of You accepting this MSA.
GENERAL TERMS AND CONDITIONS
DEFINITIONS The following Definitions are used throughout the “Terms of
Service” / “Master Services Agreement” document.

“Affiliate” shall mean, with respect to a party, any entity that directly or
indirectly controls, is controlled by, or is under common control with
such party, where “control” (or variants of it) shall mean the ability
(whether directly or indirectly) to direct the affairs of another by means
of ownership, contract or otherwise.
“Applicable Law” shall mean any international, federal, state, or local
statute, regulation, or ordinance, expressly including without limitation
those relating to individual privacy or the distribution of email and other
one-to-one digital messages.
“Confidential Information” shall have the meaning set forth in Section 6.
“Data” shall mean all data and other information uploaded by Customer
to the Platform or to a Product.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses
and other harmful or destructive code, files, scripts, agents or programs.
“Subscription” a paid license to use EMarketer Product for a defined
period of time, typically 1 month.
“Order Form” shall mean the ordering documents for Customer’s
purchases of Products or Services from EMarketer that are executed by
the parties from time to time, which shall be governed by the terms of
this MSA.
“Platform” shall mean EMarketer cross-channel interactive marketing
platform.
“Product” shall mean a specific feature (e.g., Email, Mobile, SMS, MMS,
Data Encryption, Data Transmission, Data Access, Data Storage, Social,
Sites, Micro Sites or Personal URLs (“PURLS”)) purchased as part of
Customer’s subscription to the Platform.

“Services” shall mean the implementation, integration, consulting,
and/or similar services described in a Statement of Work or Subscription
and provided by EMarketer employees and subcontractors in support of
Customer’s use of the Platform or a Product.
“Start Date” shall mean the date on which EMarketer shall make the
Platform, or a Product, available to Customer as set forth in an
applicable Order Form or Subscription.
“Statement of Work” or “SOW” shall mean the document describing the
scope and schedule of Services, if any, to be performed by EMarketer for
Customer. An SOW may be a stand-alone document or incorporated
into an Order Form or Subscription and shall be governed by the terms
of this MSA.
“Subscription Term” shall mean the subscription period set forth on an
applicable Order Form. “Term” shall have the meaning set forth in
Section 10.1.
ORDERS BY CUSTOMER AFFILIATES. This MSA enables Customer, on behalf
of itself or one or more of its Affiliates, and/or any of its Affiliates, on their
own behalf, to execute Order Forms or SOWs with EMarketer under the
terms hereof. Each Order Form and/or SOW executed by a Customer
Affiliate constitutes an independent contract between EMarketer and
the Customer Affiliate executing the Order Form and/or SOW (a
“Participating Affiliate”). Customer agrees that execution of an Order
Form or SOW by a Participating Affiliate shall represent such
Participating Affiliate’s independent acceptance of, and agreement to
be bound by, the terms and conditions of this MSA.
USE OF THE PLATFORM
3.1 EMarketer Responsibilities. EMarketer shall: (a) make the Platform
available to Customer in a manner that is consistent with generally
accepted industry standards; (b) use commercially reasonable efforts
to ensure that the Platform performs in material compliance with any

documentation or user guides provided to Customer; (c) provide
standard support to Customer at no additional charge and (d) use
commercially reasonable efforts to make the Platform available 24
hours a day, seven days a week, except for: (i) planned downtime (for
which EMarketer shall make good faith efforts to give at least five
business days’ notice and which EMarketer shall schedule to the extent
reasonably practicable during the weekend hours from 10:00 p.m. ET
Friday to 4:00 a.m. ET Saturday); or (ii) any unavailability caused by a
Force Majeure Event.
3.2 Customer Responsibilities. Customer is responsible for all activities
that occur in Customer’s account(s). Customer shall: (a) have sole
responsibility for the accuracy, quality, integrity, legality, reliability, and
appropriateness of all Data; (b) prevent unauthorized access to, or use
of, the Platform, and notify EMarketer promptly of any such unauthorized
access or use of which Customer or any of its Affiliates become aware;
(c) ensure that a user login is only used by one person (a single login
shared by multiple persons is not permitted); (d) maintain the security
of its users’ account names and passwords; and (e) comply with
Applicable Law with respect to Data and when using the Platform.
3.3 Use Guidelines. Customer shall not, and shall not permit any third
party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign,
distribute, time share or otherwise commercially exploit or make the
Platform available to any third party except as permitted by this MSA;
(b) send via, upload to, or store within the Platform any Malicious Code;
(c) interfere with or disrupt the integrity or performance of the Platform
or any parties’ or third party’s data contained therein; or (d) attempt to
gain unauthorized access to the Platform or its related systems or
networks.
FEES & PAYMENT
4.1 Fees & Expenses. Customer shall be obligated to pay all fees specified
in all Order Forms and/or SOWs and/or Subscriptions executed under

this MSA. Customer shall reimburse EMarketer for all reasonable, pre-
approved travel and out-of-pocket expenses incurred in connection
with EMarketer performance of Services. EMarketer reserves the right to
terminate and/or modify the terms of use of your Account at any time
without notice.
EMarketer may automatically bill your credit card each month or year
on the calendar day corresponding to the commencement of your paid
account. You acknowledge that the amount billed each month or year
may vary for reasons that include changes due to promotional offers or
changes in your account. You authorize us to charge your credit card or
banking account for such varying amounts. You further authorize us to
charge your credit card or bank account, at our sole discretion, for any
additional product(s) or service(s) you request or consume while using
the Platform, Product or Service at the time they are performed (in the
case of Services) or consumed or enabled (in the case of Products).
EMarketer may also periodically authorize your credit card in
anticipation of account or related charges. All fees and charges are
nonrefundable and there are no refunds or credits for partially used
periods.
In the event of any change in fees and charges, we will give you 30 days
advance notice of these changes by email. If you want to use a different
credit card or if there is a change in your credit card validity or
expiration date, you may edit your information by accessing your
account or by contacting us directly. If your credit card reaches its
expiration date and you have not updated your billing information
EMarketer reserves the right to restrict access to or terminate your
account until such time as the billing information has been updated
and all pending invoices are settled. Your continued use of the
EMarketer Product constitutes your authorization for us to continue
billing that credit card and you remain responsible for any uncollected

amounts. It is your responsibility to keep your contact information and
payment information current and updated.
4.2 Overdue Payments. Customer’s failure to timely pay any fees and
expenses that are not the subject of a good faith dispute of which
Customer notifies EMarketer in a detailed writing (“Undisputed Fees”)
shall constitute a material breach of the Agreement. If any amounts for
which Customer is responsible are overdue, then EMarketer may provide
Customer with written or electronic notice of the same (a “Late Notice”).
If Customer fails to pay all overdue amounts within 10 business days
after Customer’s receipt of the Late Notice, then EMarketer may, in
addition to any of its other rights or remedies, suspend access to the
Platform and/or Products and/or its provision of Services until all
overdue amounts are paid in full. If Customer fails to pay all overdue
amounts within 30 days after Customer’s receipt of the Late Notice, then
EMarketer: (a) may terminate the Agreement, including all outstanding
Order Forms and SOWs; (b) shall be entitled to recover from Customer
(i) interest on all overdue amounts at the lower of a rate of 1.5% per
month or the maximum rate permitted by law (“Interest”); and (ii) all
fees and costs (including reasonable attorneys’ fees, court costs and
collection agency fees) incurred in seeking collection of such overdue
amounts (“Collection Costs”).
4.3 Taxes. Unless otherwise stated, EMarketer fees do not include any
direct or indirect local, state, federal or foreign taxes, levies, duties or
similar governmental assessments of any nature, including value-
added, use or withholding taxes (collectively, “Taxes”). Customer is
responsible for paying all Taxes associated with its purchases
hereunder, excluding taxes based on EMarketer net income or property.
If EMarketer has the legal obligation to pay or collect Taxes for which
Customer is responsible under this Section, the appropriate amount
shall be invoiced to and paid by Customer, unless Customer provides

EMarketer with a valid tax exemption certificate authorized by the
appropriate taxing authority.
4.4 Canceling Your Account. Your EMarketer paid account will continue
in effect and will auto renew unless and until you cancel your paid
account or we terminate it. You must cancel your paid account before it
renews each month or year in order to avoid billing of the next month’s
or year’s fees to your credit card. EMarketer paid accounts are prepaid
and are non-refundable. EMarketer DOES NOT PROVIDE REFUNDS OR
CREDITS FOR ANY PARTIAL MONTHS OR YEARS. Except as specifically set
forth herein or on the Site, there are no refunds for any fees paid. YOU
ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS
AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY
TERMINATE YOUR ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD
OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO
PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
During the first 30 days of service, you may cancel your account at any
time. After the first 30 days of service, EMarketer requires a 30-day
written notice for account cancelation. At the time of cancelation your
account will be billed for any and all existing and/or outstanding
Product(s) and Service(s). During the 30 day cancelation period you will
be billed for any Product(s) or Service(s) consumed during the 30 day
cancelation period.
EMarketer will bill the monthly or yearly fees associated with your paid
accounts to the credit card you provide to us during registration (or to a
different credit card if you change your account information).
By signing up for a EMarketer paid accounts and providing EMarketer
with your payment account information, you hereby agree to these
payment terms and conditions.
PROPRIETARY RIGHTS

5.1 Restrictions. Customer shall not, and shall not permit any third party
to: (a) modify, copy or create derivative works based on the Platform or
Products; (b) frame or mirror any content forming part of the Platform or
Products, other than on Customer’s own intranets or otherwise for its
own internal business purposes; (c) reverse engineer, de-compile,
disassemble or otherwise attempt to discover the source code of the
Platform or Products; or (d) access the Platform or Products in order to
(i) build a competitive product or service, or (ii) copy any ideas, features,
functions or graphics of the Platform or Products.
5.2 EMarketer Intellectual Property. EMarketer reserves all rights, title, and
interest in and to the Platform, the Products, and the Services, including
all related patent, copyright, trademark and other intellectual property
rights. No rights are granted to Customer hereunder other than as
expressly set forth herein. In addition, EMarketer shall own all rights, title,
and interest, including all intellectual property rights, in and to any
improvements to the Platform or Products, including without limitation
those relating to any new programs, upgrades, modifications,
refinements, feedback, comments or enhancements (collectively,
“Improvements”) developed by or for EMarketer in connection with
providing the Platform or Products to Customer, even when such
Improvements result from Customer’s request. To the extent, if any, that
ownership in such Improvements does not automatically vest in
EMarketer by virtue of the Agreement or otherwise, Customer hereby
transfers and assigns to EMarketer all rights, title, and interest that
Customer may have in and to such Improvements.
5.3 Customer’s Intellectual Property. As between EMarketer and
Customer, Customer exclusively owns all rights, title and interest in and
to all Data. Unless, Customer agrees to a reduced costs or free offering
to use products will allow EMarketer right to utilize all data. In addition, all
content created by, or by EMarketer for, Customer during performance
of the Services, including without limitation email templates, newsletters,

distribution lists, links, images, graphs and photos (the “Work Product”),
shall be the sole and exclusive property of Customer. EMarketer agrees
that it will not use the same Work Product created for Customer under
this Agreement for another EMarketer customer; provided, however, that
nothing in the preceding sentence shall be interpreted to preclude
EMarketer from using the same functionality, format, code, design,
concepts, workflows, integrations or other ideas represented in the Work
Product. Further, EMarketer shall be allowed to utilize “meta-data”
resulting from customer sends (specifically including “hard” and “soft”
bounce data), feedback loops and reporting metrics, to optimize
deliverability for Customer and for other EMarketer Customers. For all
other deliverables described in a Statement of Work which are not
deemed Work Product, EMarketer hereby grants Customer a limited,
nonexclusive, nontransferable, revocable license to use such other
deliverables during an applicable Subscription Term.
5.4 Publicity; Trademarks. Neither party may issue press releases or any
other public announcement of any kind relating to the Agreement
without the other party’s prior written consent. Notwithstanding the
foregoing, during an applicable Subscription Term, either party may
include the names, trademarks and other logos of the other party
(collectively the “Marks”) in lists (including on its website) of customers
or vendors in accordance with the other party’s standard usage
guidelines relating to its Marks. In addition, EMarketer may use the
Customer’s Marks in connection with its authorized provision of the
Platform and solely to the extent Customer has uploaded or
incorporated such Marks into the form of communication to be
delivered, and has initiated the distribution of the same, through its use
of the Platform. Except as set forth herein, neither party may use the
Marks of the other party without its prior written consent.
CONFIDENTIALITY
6.1 Definition of Confidential Information. “Confidential Information”

means all confidential and proprietary information of a party
(“Disclosing Party”) disclosed to the other party (“Receiving Party”) that
(a) if disclosed orally is designated as confidential at the time of
disclosure, (b) if disclosed in writing is marked as “Confidential” and/or
“Proprietary”, or (c) reasonably should be understood to be confidential
given the nature of the information and the circumstances of
disclosure. Confidential Information shall include, without limitation, the
terms and conditions of the Agreement (including pricing and other
terms reflected in all Order Forms and SOWs), the Data, business and
marketing plans, technology and technical information, financial
information, business strategies, practices, procedures, methodologies,
know-how, product designs, and business processes. Confidential
Information (except for Data) shall not include any information that: (i) is
or becomes generally known to the public without breach of any
obligation owed to the Disclosing Party by the Receiving Party; (ii) was
known to the Receiving Party prior to its disclosure by the Disclosing
Party; (iii) was independently developed by the Receiving Party without
use of the Confidential Information of the Disclosing Party; or (iv) is
rightfully received from a third party not known by the Receiving Party to
be subject to an obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall use practices consistent
with generally accepted industry standards to protect the security of
Confidential Information it receives from the Disclosing Party and to
prevent the disclosure or use any such Confidential Information for any
purpose other than to fulfill the purpose of the Agreement.
Notwithstanding the foregoing: (a) the Receiving Party may disclose
such Confidential Information to its employees and that prior to
disclosure it will cause such employees and contractors to agree to be
bound by terms and conditions of confidentiality substantially similar to
those in this MSA; and (b) each party may disclose the existence and
terms of the Agreement: (i) in confidence, to a potential purchaser of or
successor to any portion of such party’s business; (ii) to its attorneys,

accountants and other advisors having a need to know the same; and
(iii) if necessary to enforce its rights under the Agreement, provided that
the Receiving Party uses reasonable efforts to limit such disclosure and
to obtain confidential treatment of, or a protective order governing, the
terms of the Agreement.
6.3 Compelled Disclosure. If the Receiving Party is requested to, or
subject to a legal obligation to, disclose Confidential Information of the
Disclosing Party, it shall provide the Disclosing Party with notice of the
same as early as reasonably practical (if legally permitted) and
reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party
wishes to contest the disclosure.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to
disclose or use) any Confidential Information of the Disclosing Party in
breach of the confidentiality protections hereunder, the Disclosing Party
shall have the right, in addition to any other remedies available to it, to
seek immediate injunctive relief to enjoin such acts, it being specifically
acknowledged by the parties that any other available remedies may be
inadequate. Customer acknowledges that EMarketer is unable to
guarantee absolute security of Data or Confidential Information and
that EMarketer has no liability to Customer for any unauthorized access
or use of such Data or Information by a third party, or the corruption,
deletion, destruction or loss of any such Data or Information, unless
EMarketer’s security practices are below generally accepted industry
standards.
6.5 Survival. Notwithstanding the expiration or termination of this MSA for
any reason, the obligations of confidentiality and non-use set forth in
this Section shall extend for a period of five years after such expiration
or termination, except with respect to either party’s trade secrets or to
audit reports and findings belonging to EMarketer’s third party
datacenters, all of which shall be held in confidence indefinitely.

WARRANTIES & DISCLAIMERS
7.1 Mutual Warranties. Each party represents and warrants that: it has
the legal power to enter into the Agreement; the signatory hereto has
the authority to bind the applicable organization; and when executed
and delivered, the Agreement will constitute the legal, valid, and binding
obligation of each party, enforceable in accordance with its terms.
7.2 EMarketer Warranties. EMarketer represents and warrants that: (a)
the functionality of the Platform will not be materially decreased during
the Term; (b) it will utilize software and other security means designed to
prevent the Platform from containing or transmitting Malicious Code; (c)
it owns or otherwise has sufficient rights in the Platform and Products to
grant to Customer the rights to use the Platform and Products granted
herein; and (d) the Services will be performed in a professional and
workmanlike manner in accordance with generally accepted industry
standards.
7.3 Customer Warranties. Customer represents and warrants that: (a)
the Data does not and will not infringe on any copyright, patent, trade
secret or other proprietary right held by any third party and was not and
will not be gathered or used by Customer in a manner that violates
Applicable Law; (b) it will not use the Platform or any Product in a
manner that violates Applicable Law; and (c) it will not upload to or send
through the Platform or any Product any social security numbers,
passport numbers, financial account numbers, or credit card
information (as contemplated by the Payment Card Industry Data
Security Standards), post, publish or transmit any text, graphics, or
material that: (i) is false or misleading; (ii) is defamatory; (iii) invades
another’s privacy; (iv) is obscene, pornographic, or offensive; (v)
promotes bigotry, racism, hatred or harm against any individual or
group; (vi) infringes another’s rights, including any intellectual property
rights; or (vii) violates, or encourages any conduct that would violate,
any applicable law or regulation or would give rise to civil liability, send

unsolicited email, junk mail, “spam,” or chain letters, or promotions or
advertisements for products or services. Any violations under this
section may result in account termination for cause as expressly
allowed in Section 10.3 of this Agreement.
7.4 Digital Millennium Copyright Act Compliance. Customer represents
and warrants that: You will only upload, post, submit or otherwise
transmit data and/or files: (i) that you have the lawful right to use, copy,
distribute, transmit, or display; or (ii) that does not infringe the
intellectual property rights or violate the privacy rights of any third party
(including, without limitation, copyright, trademark, patent, trade secret,
or other intellectual property right, or moral right or right of publicity).
EMarketer has adopted and implemented a policy that permits the
deletion of files that violate this policy, and that permits the termination
in appropriate circumstances of the accounts of users who repeatedly
infringe or are believed to be or are charged with repeatedly infringing
the rights of copyright holders. Any violations under this section may
result in account termination for cause as expressly allowed in Section
10.3 of this Agreement.
7.5 Canadian Anti-Spam Legislation (CASL). Customer acknowledges it is
their obligation to conform to CASL regulations. To that end, customer
agrees explicitly to abide by all provisions of the Canadian Law relative
to email including its obligations to (a) Email only to individuals in
Canada who have strictly opted-in to receive communications (Email,
SMS, or otherwise) from Customer; (b) Retain specific and detailed
records associated with that Customer opt-in including Opt-In Time,
Opt-In Date, Opt-In Type, Opt-In Method, Opt-In Source, Proof of direct
relationship of the opt-in; (c) Promptly honor requests for opt-in
information and promptly honor opt-out (unsubscribe) requests; (d)
Reconfirm the direct relationship with the client via opt-in every 12
months. Any violations under this section may result in account

termination for cause as expressly allowed in Section 10.3 of this
Agreement.
Further, in addition to the Indemnification provision in Section 8 below,
Customer further acknowledges that it is solely responsible for
conforming to CASL regulations and accordingly indemnifies EMarketer
against any breach of CASL that may be caused by Customer’s use of
the EMarketer platform, including but not limited to the payment of any
fines.
7.6 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMarketer EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND
GUARANTEES WITH RESPECT TO THE SERVICES, PLATFORM AND PRODUCTS,
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE
OF DEALING OR COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN
STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EMarketer DOES NOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER
MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE PLATFORM OR ANY
PRODUCT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,
INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY,
SUITABILITY FOR USE OR PERFORMANCE OF THE PLATFORM OR ANY PRODUCT,
NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY
BY EMarketer.
INDEMNIFICATION
8.1 By EMarketer. EMarketer shall defend, indemnify and hold Customer,
its Affiliates, and their respective officers, directors, agents and
employees, harmless against any loss, damage or costs (including
reasonable attorneys’ fees) (“Losses”) incurred in connection with any
claim, demand, suit or proceeding (“Claim”) made or brought against
Customer by a third party relating to: (a) EMarketer’s violation of
Applicable Law in (i) providing the Services or (ii) making the Platform

and/or Products available to Customer; (b) negligent acts or omissions
of EMarketer resulting in a breach of the confidentiality obligations set
forth in Section 6; and/or (c) Customer’s use of the Platform or any
Product in a manner permitted by the Agreement that infringes the
intellectual property rights of such third party; provided, however, that
EMarketer shall have no such indemnification obligation if the Claim
relates (i) to a third-party Product made available through the Platform
or (ii) to use of the Platform or an EMarketer Product in combination with
Data, Marks, software, data products, processes, or materials not
provided by EMarketer and the infringement would not have occurred
but for the combination.
8.2 By Customer. Customer shall defend, indemnify, and hold EMarketer,
its Affiliates, and their respective officers, directors, agents and
employees, harmless against any Loss incurred in connection with any
Claim made or brought against EMarketer by a third party alleging that:
(a) Customer has used the Platform or any Product in a way that
violates Applicable Law or the Agreement; and (b) Data, and/or any
materials provided to EMarketer necessary to perform the Services,
infringe upon or violate the intellectual property, privacy, or other rights
of a third party.
8.3 Procedure. As an express condition to the indemnifying party’s
obligation under this Section 8, the party seeking indemnification must:
(a) promptly notify the indemnifying party in writing of the applicable
Claim for which indemnification is sought; provided, however, that any
delay in notification shall not relieve the indemnifying party of its
obligations hereunder except to the extent that the delay materially
impairs its ability to defend the applicable Claim or perform its
indemnification obligations hereunder; and (b) provide the
indemnifying party with all non-monetary assistance, information and
authority reasonably required for the indemnifying party to defend and
settle such Claim. The indemnifying party may select counsel of its

choice to defend the Claim and direct the course of any litigation or
other disputed proceedings concerning the Claim. The indemnified
party may select its own counsel and direct its own defense of a Claim if
it chooses to do so, but it must bear the costs of its own counsel and any
activities in any disputed proceeding conducted by counsel of its
choosing. The indemnifying party may settle any Claim, with the
consent of the indemnified party, such consent not to be unreasonably
withheld, conditioned or delayed.
LIABILITY LIMITATIONS
9.1 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL EITHER PARTY’S
LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE
AGGREGATE SUMS PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS
PRECEDING THE INCIDENT GIVING RISE TO LIABILITY; PROVIDED, HOWEVER,
THAT IN NO EVENT SHALL CUSTOMER’S LIABILITY TO EMarketer BE LESS THAN
THE SUM OF ALL OUTSTANDING FEES AND EXPENSES OWED BY CUSTOMER OR
ANY CUSTOMER AFFILIATE PLUS ALL INTEREST AND COLLECTION COSTS
ASSOCIATED THEREWITH. NOTWITHSTANDING THE FOREGOING, CUSTOMER’S
EXCLUSIVE REMEDY, AND EMarketer’S ENTIRE LIABILITY, FOR ANY BREACH OF
THE WARRANTIES IN SECTION 7.2(D) IS LIMITED TO RE-PERFORMANCE OF THE
SERVICES. IF EMarketer IS UNABLE TO RE-PERFORM THE SERVICES AS
WARRANTED WITHIN 30 DAYS OF RECEIPT OF WRITTEN NOTICE OF BREACH,
CUSTOMER SHALL BE ENTITLED TO RECOVER THE FEES PAID TO EMarketer FOR
THE DEFICIENT SERVICES.
9.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT
SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL
DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED (INCLUDING BUT NOT
LIMITED TO LOST PROFITS AND LOSS OF GOODWILL), WHETHER IN CONTRACT,

TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERM & TERMINATION
10.1 Term of MSA. This MSA commences on the Effective Date and
continues until the termination or expiration of all Subscription Terms
specified in all Order Forms and/or of the terms specified in all SOWs
(the “Term”).
10.2 Term of Subscriptions. Subscriptions to the Platform or a Product
commence on the Start Date and continue for the Subscription Term
specified in the applicable Order Form or Subscription. Unless otherwise
set forth in an Order Form or Subscription, subscriptions shall
automatically renew for additional periods of one year for the fees set
forth in the applicable Order Form or Subscription unless either party
gives the other notice of non-renewal at least 30 days prior to the end of
the then-current Subscription Term.
10.3 Termination; Surviving Provisions. EMarketer may, at our sole
discretion, terminate your account or your access to your account or
use of the Site or the Product(s), disable your account or disable access
to the Site or the Product(s), remove all or a portion of your contacts and
content, cancel or suspend any of your events, or put your account on
inactive status, in each case at any time, with or without cause, with or
without notice and without refund.
We shall have no liability to you or any third party because of such
termination or action, except that we will refund a pro rata portion of
any prepaid amounts if we terminate you without cause.
After termination, you shall process all unsubscribe requests within 30
days of your last email campaign. Upon request within 30 days of your
termination, we will provide the list of unsubscribe requests from your
account to you. Under the CAN-SPAM Act and Canada’s Anti-Spam

Legislation, you acknowledge that you are responsible for maintaining
and honoring the list of unsubscribe requests following termination of
your account and this Agreement.
If your account is classified (at our sole discretion) as inactive for over
120 days, we have the right to permanently delete any of your contacts
and content.
10.4 Surviving Provisions. Section 1 and Sections 4 through 11 shall survive
any termination or expiration of this Agreement, regardless of the cause
of termination.
GENERAL PROVISIONS
11.1 Relationship of the Parties; Third Party Beneficiaries. The Agreement
does not create a partnership, franchise, joint venture, agency, fiduciary,
or employment relationship between the parties. Unless otherwise
provided in an Addendum, there are no third-party beneficiaries to the
Agreement.
11.2 Force Majeure. Neither party is responsible for delays or failures to
perform its responsibilities under the Agreement due to causes beyond
its reasonable control, including but not limited to acts of God, acts of
government, flood, fire, earthquakes, tornadoes, civil unrest, acts of
terror, strikes or other labor problems, computer, telecommunications,
internet service provider or hosting facility failures or delays involving
hardware, software or power systems, Malicious Code, denial of service
attacks, and inability to obtain energy (each a “Force Majeure Event”);
provided, however, that it will resume performance as soon as
reasonably practicable.
11.3 Notices. Any notice, request, approval or written consent required
under the Agreement shall be sufficiently given if in writing and
delivered in person or mailed (certified or registered mail, return receipt
requested) by one party to the other at the address set forth on the first
page hereof or to such other address as the recipient may

subsequently furnish in writing to the sender. Notices to EMarketer shall
be addressed to the attention of its General Counsel. Notices to
Customer shall be addressed to Customer’s signatory of this MSA unless
otherwise designated in writing. Notice shall be effective upon receipt.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party
in exercising any right under the Agreement shall constitute a waiver of
that right. Other than as expressly stated herein, the remedies provided
herein are in addition to, and not exclusive of, any other remedies of a
party at law or in equity.
11.5 Severability. Any provision of the Agreement which is prohibited and
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
(a) invalidating the remaining provisions hereof if the essential
provisions of the Agreement for each party remain valid, binding, and
enforceable, or (b) affecting the validity or enforceability of such
provisions in any other jurisdiction.
11.6 Assignment. Neither party may assign the Agreement or any of its
rights or obligations hereunder, whether by operation of law or
otherwise, without the prior written consent of the other party (not to be
unreasonably withheld, conditioned or delayed). Notwithstanding the
foregoing, either party may assign the Agreement in its entirety
(including all Order Forms and SOWs), without consent of the other
party, in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not involving
a direct competitor of the other party. Any attempt by a party to affect
an assignment in breach of this Section shall be void. Subject to the
foregoing, the Agreement shall bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
11.7 Governing Law; Venue; JURY TRIAL WAIVER. The Agreement, and all
claims arising out of or relating to its subject matter, shall be exclusively

governed by and construed under the internal laws of the State of
Indiana, without regard to its conflicts of laws rules. Each party consents
to the exclusive jurisdiction of the state and federal courts located in
Marion County (Indianapolis), Indiana to adjudicate any claim arising
out of or relating to the Agreement or its subject matter. EACH PARTY
WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ALL CLAIMS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER.
11.8 Attorneys’ Fees. If either party hereto files a legal proceeding arising
out of or relating to the Agreement or its subject matter, the prevailing
party (as adjudged by a court or other fact finder) shall be entitled to an
award of all costs and expenses incurred in connection with such
proceeding, including but not limited to reasonable attorneys’ fees and
expert witness fees.
11.9 Entire Agreement. The Agreement, as defined herein, constitutes the
entire agreement between the parties with respect to the subject
matter set forth in the Order Forms and SOWs executed by the parties
during the Term, and supersedes all prior and contemporaneous
agreements, proposals or representations, written or oral, concerning its
subject matter. No modification, amendment, or waiver of any provision
of the Agreement shall be effective unless in writing and signed by both
parties hereto. To the extent of any conflict or inconsistency between
the provisions in the body of this MSA and any Addendum, Exhibit, Order
Form, or SOW, the terms of this MSA shall prevail unless expressly stated
otherwise in such Addendum, Exhibit, Order Form, or SOW.
Notwithstanding any language to the contrary therein, no terms or
conditions stated in a Customer purchase order or in any other
Customer order documentation (excluding Order Forms and SOWs)
shall be incorporated into or form any part of the Agreement, and all
such terms or conditions shall be null and void. The language used in
this MSA shall be deemed to be language chosen by both parties hereto
to express their mutual intent, and no rule of strict construction against

either party shall apply to rights granted herein or to any term of
condition of this MSA. In the event of any asserted ambiguous term or
condition herein, the parties agree that the principle that ambiguities
shall be construed against the drafter shall not be employed. Each party
represents and warrants that, in deciding to execute the Agreement, it
has not relied and should not rely on any understandings,
representations, inducements, warranties or promises, whether written
or oral and/or whether express or implied, regarding the Agreement, the
matters referenced in the Agreement or any other matters not
referenced in the Agreement. Each party represents and warrants that it
did not enter the Agreement based on any representation or omission
of any other party or its agents, and that any term not present in the
Agreement was not material to its decision to enter into the Agreement.
11.10 Counterparts. This MSA may be executed in counterparts, which
taken together shall form one legal instrument. Delivery of an executed
counterpart signature page of this MSA by facsimile, email, or other
electronic transmission shall be effective as delivery of a manually
executed counterpart of this MSA.
Copyright © 2019 eMarketer is an LG Enterprises Company