MASTER SERVICES
\nAGREEMENT<\/p>\n
EMarketer
\n6636 W. Bancroft St
\nToledo, OH 43615
\nAGREEMENT BETWEEN YOU AND EMarketer
\nIMPORTANT-READ CAREFULLY: This Terms of Service \/ Master Services
\nAgreement (this \u201cMSA\u201d, \u201cTerms of Service\u201d) is binding and enforceable
\nbetween you (\u201cCUSTOMER\u201d) and EMarketer. These Terms of Service \/ MSA
\ngovern your access to and use of EMarketer\u2019 website (the \u201cSite\u201d), any
\ninformation, text, graphics, or other materials created and\/or provided
\nby EMarketer and appearing on the Site (the \u201cContent\u201d), Products (as
\ndefined below), Platform (as defined below) and any services and\/or
\nsoftware provided through the Site or by EMarketer (the \u201cServices\u201d).
\nThese Terms of Service \/ MSA limit EMarketer\u2019 liability and obligations to
\nyou, grant EMarketer certain rights and allow EMarketer to change,
\nsuspend or terminate your access to and use of the Site, Content, Files
\nand Services. Your access to and use of the Site, Content, Files and\/or
\nServices are expressly conditioned on your compliance with these
\nTerms of Service \/ MSA. By accessing or using the Site, Content, Files
\nand\/or Services you agree to be bound by these Terms of Service \/ MSA.
\nYOU UNDERSTAND THAT BY SIGNING OR CLICKING THE \u201cI AGREE\u201d BUTTON, BY
\nUSING THE SITE, CONTENT, FILES AND\/OR SERVICES OR YOUR ACCOUNT YOU
\nARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE \/ MSA. IF YOU DO
\nNOT ACCEPT THESE TERMS OF SERVICE \/ MSA IN THEIR ENTIRETY, YOU MAY
\nNOT ACCESS OR USE THE SITE, CONTENT, FILES OR SERVICES. You are
\nspecifically agreeing to a limit of our obligations and liability as
\nreferenced in the following Sections: Us of Site at Your Own Risk,
\nEMarketer is Available \u201cAS IS\u201d and Limitation of Liability. Further, you are
\nspecifically agreeing to arbitration, on an individual basis, in the event of
\na dispute between us in the following Section: Controlling Law,
\nArbitration, Class Action Waiver and Jurisdiction. If you agree to these<\/p>\n
Terms of Service \/ MSA on behalf of a business, you represent and
\nwarrant that you have the authority to bind that business to these
\nTerms of Service \/ MSA and your agreement to these terms will be
\ntreated as the agreement of the business. In that event, \u201cyou\u201d and \u201cyour\u201d
\nwill refer and apply to that business.
\nThis MSA includes the General Terms and Conditions set forth on the
\nfollowing pages and all terms and conditions set forth in all Product
\nAddenda specific to the Products purchased as part of Your
\nsubscription. Product Addenda, as well as the most current version of
\nthis MSA, are available for review at
\nhttps:\/\/www.fullserviceemailmarketer.com\/legal. The parties\u2019 complete
\nagreement with respect to the subject matter set forth in the Order
\nForms, or Online Subscription executed by the parties during the Term
\nincludes this MSA (including all applicable Product Addenda) and all
\nsuch Order Forms or Online Subscription, all of which shall be hereinafter
\nreferenced as the \u201cAgreement\u201d. You expressly agree that the terms and
\nconditions of this MSA shall govern all Products and Services provided to
\nYou during the Term and are a material part of EMarketer\u2019 agreement to
\nprovide such Products and Services, whether or not the same is made
\nexpress at the time of provision.
\nEMarketer hereby agrees to make the Products and\/or Services
\ndescribed in each Addendum or subscription hereto available to You,
\nand You agree to purchase such Products and\/or Services from
\nEMarketer, subject to the terms and conditions of the Agreement.
\nThis MSA was last updated on March 1, 2017. It is effective between You
\nand EMarketer as of the date of You accepting this MSA.
\nGENERAL TERMS AND CONDITIONS
\nDEFINITIONS The following Definitions are used throughout the \u201cTerms of
\nService\u201d \/ \u201cMaster Services Agreement\u201d document.<\/p>\n
\u201cAffiliate\u201d shall mean, with respect to a party, any entity that directly or
\nindirectly controls, is controlled by, or is under common control with
\nsuch party, where \u201ccontrol\u201d (or variants of it) shall mean the ability
\n(whether directly or indirectly) to direct the affairs of another by means
\nof ownership, contract or otherwise.
\n\u201cApplicable Law\u201d shall mean any international, federal, state, or local
\nstatute, regulation, or ordinance, expressly including without limitation
\nthose relating to individual privacy or the distribution of email and other
\none-to-one digital messages.
\n\u201cConfidential Information\u201d shall have the meaning set forth in Section 6.
\n\u201cData\u201d shall mean all data and other information uploaded by Customer
\nto the Platform or to a Product.
\n\u201cMalicious Code\u201d shall mean viruses, worms, time bombs, Trojan horses
\nand other harmful or destructive code, files, scripts, agents or programs.
\n\u201cSubscription\u201d a paid license to use EMarketer Product for a defined
\nperiod of time, typically 1 month.
\n\u201cOrder Form\u201d shall mean the ordering documents for Customer\u2019s
\npurchases of Products or Services from EMarketer that are executed by
\nthe parties from time to time, which shall be governed by the terms of
\nthis MSA.
\n\u201cPlatform\u201d shall mean EMarketer cross-channel interactive marketing
\nplatform.
\n\u201cProduct\u201d shall mean a specific feature (e.g., Email, Mobile, SMS, MMS,
\nData Encryption, Data Transmission, Data Access, Data Storage, Social,
\nSites, Micro Sites or Personal URLs (\u201cPURLS\u201d)) purchased as part of
\nCustomer\u2019s subscription to the Platform.<\/p>\n
\u201cServices\u201d shall mean the implementation, integration, consulting,
\nand\/or similar services described in a Statement of Work or Subscription
\nand provided by EMarketer employees and subcontractors in support of
\nCustomer\u2019s use of the Platform or a Product.
\n\u201cStart Date\u201d shall mean the date on which EMarketer shall make the
\nPlatform, or a Product, available to Customer as set forth in an
\napplicable Order Form or Subscription.
\n\u201cStatement of Work\u201d or \u201cSOW\u201d shall mean the document describing the
\nscope and schedule of Services, if any, to be performed by EMarketer for
\nCustomer. An SOW may be a stand-alone document or incorporated
\ninto an Order Form or Subscription and shall be governed by the terms
\nof this MSA.
\n\u201cSubscription Term\u201d shall mean the subscription period set forth on an
\napplicable Order Form. \u201cTerm\u201d shall have the meaning set forth in
\nSection 10.1.
\nORDERS BY CUSTOMER AFFILIATES. This MSA enables Customer, on behalf
\nof itself or one or more of its Affiliates, and\/or any of its Affiliates, on their
\nown behalf, to execute Order Forms or SOWs with EMarketer under the
\nterms hereof. Each Order Form and\/or SOW executed by a Customer
\nAffiliate constitutes an independent contract between EMarketer and
\nthe Customer Affiliate executing the Order Form and\/or SOW (a
\n\u201cParticipating Affiliate\u201d). Customer agrees that execution of an Order
\nForm or SOW by a Participating Affiliate shall represent such
\nParticipating Affiliate\u2019s independent acceptance of, and agreement to
\nbe bound by, the terms and conditions of this MSA.
\nUSE OF THE PLATFORM
\n3.1 EMarketer Responsibilities. EMarketer shall: (a) make the Platform
\navailable to Customer in a manner that is consistent with generally
\naccepted industry standards; (b) use commercially reasonable efforts
\nto ensure that the Platform performs in material compliance with any<\/p>\n
documentation or user guides provided to Customer; (c) provide
\nstandard support to Customer at no additional charge and (d) use
\ncommercially reasonable efforts to make the Platform available 24
\nhours a day, seven days a week, except for: (i) planned downtime (for
\nwhich EMarketer shall make good faith efforts to give at least five
\nbusiness days\u2019 notice and which EMarketer shall schedule to the extent
\nreasonably practicable during the weekend hours from 10:00 p.m. ET
\nFriday to 4:00 a.m. ET Saturday); or (ii) any unavailability caused by a
\nForce Majeure Event.
\n3.2 Customer Responsibilities. Customer is responsible for all activities
\nthat occur in Customer\u2019s account(s). Customer shall: (a) have sole
\nresponsibility for the accuracy, quality, integrity, legality, reliability, and
\nappropriateness of all Data; (b) prevent unauthorized access to, or use
\nof, the Platform, and notify EMarketer promptly of any such unauthorized
\naccess or use of which Customer or any of its Affiliates become aware;
\n(c) ensure that a user login is only used by one person (a single login
\nshared by multiple persons is not permitted); (d) maintain the security
\nof its users\u2019 account names and passwords; and (e) comply with
\nApplicable Law with respect to Data and when using the Platform.
\n3.3 Use Guidelines. Customer shall not, and shall not permit any third
\nparty to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign,
\ndistribute, time share or otherwise commercially exploit or make the
\nPlatform available to any third party except as permitted by this MSA;
\n(b) send via, upload to, or store within the Platform any Malicious Code;
\n(c) interfere with or disrupt the integrity or performance of the Platform
\nor any parties\u2019 or third party\u2019s data contained therein; or (d) attempt to
\ngain unauthorized access to the Platform or its related systems or
\nnetworks.
\nFEES & PAYMENT
\n4.1 Fees & Expenses. Customer shall be obligated to pay all fees specified
\nin all Order Forms and\/or SOWs and\/or Subscriptions executed under<\/p>\n
this MSA. Customer shall reimburse EMarketer for all reasonable, pre-
\napproved travel and out-of-pocket expenses incurred in connection
\nwith EMarketer performance of Services. EMarketer reserves the right to
\nterminate and\/or modify the terms of use of your Account at any time
\nwithout notice.
\nEMarketer may automatically bill your credit card each month or year
\non the calendar day corresponding to the commencement of your paid
\naccount. You acknowledge that the amount billed each month or year
\nmay vary for reasons that include changes due to promotional offers or
\nchanges in your account. You authorize us to charge your credit card or
\nbanking account for such varying amounts. You further authorize us to
\ncharge your credit card or bank account, at our sole discretion, for any
\nadditional product(s) or service(s) you request or consume while using
\nthe Platform, Product or Service at the time they are performed (in the
\ncase of Services) or consumed or enabled (in the case of Products).
\nEMarketer may also periodically authorize your credit card in
\nanticipation of account or related charges. All fees and charges are
\nnonrefundable and there are no refunds or credits for partially used
\nperiods.
\nIn the event of any change in fees and charges, we will give you 30 days
\nadvance notice of these changes by email. If you want to use a different
\ncredit card or if there is a change in your credit card validity or
\nexpiration date, you may edit your information by accessing your
\naccount or by contacting us directly. If your credit card reaches its
\nexpiration date and you have not updated your billing information
\nEMarketer reserves the right to restrict access to or terminate your
\naccount until such time as the billing information has been updated
\nand all pending invoices are settled. Your continued use of the
\nEMarketer Product constitutes your authorization for us to continue
\nbilling that credit card and you remain responsible for any uncollected<\/p>\n
amounts. It is your responsibility to keep your contact information and
\npayment information current and updated.
\n4.2 Overdue Payments. Customer\u2019s failure to timely pay any fees and
\nexpenses that are not the subject of a good faith dispute of which
\nCustomer notifies EMarketer in a detailed writing (\u201cUndisputed Fees\u201d)
\nshall constitute a material breach of the Agreement. If any amounts for
\nwhich Customer is responsible are overdue, then EMarketer may provide
\nCustomer with written or electronic notice of the same (a \u201cLate Notice\u201d).
\nIf Customer fails to pay all overdue amounts within 10 business days
\nafter Customer\u2019s receipt of the Late Notice, then EMarketer may, in
\naddition to any of its other rights or remedies, suspend access to the
\nPlatform and\/or Products and\/or its provision of Services until all
\noverdue amounts are paid in full. If Customer fails to pay all overdue
\namounts within 30 days after Customer\u2019s receipt of the Late Notice, then
\nEMarketer: (a) may terminate the Agreement, including all outstanding
\nOrder Forms and SOWs; (b) shall be entitled to recover from Customer
\n(i) interest on all overdue amounts at the lower of a rate of 1.5% per
\nmonth or the maximum rate permitted by law (\u201cInterest\u201d); and (ii) all
\nfees and costs (including reasonable attorneys\u2019 fees, court costs and
\ncollection agency fees) incurred in seeking collection of such overdue
\namounts (\u201cCollection Costs\u201d).
\n4.3 Taxes. Unless otherwise stated, EMarketer fees do not include any
\ndirect or indirect local, state, federal or foreign taxes, levies, duties or
\nsimilar governmental assessments of any nature, including value-
\nadded, use or withholding taxes (collectively, \u201cTaxes\u201d). Customer is
\nresponsible for paying all Taxes associated with its purchases
\nhereunder, excluding taxes based on EMarketer net income or property.
\nIf EMarketer has the legal obligation to pay or collect Taxes for which
\nCustomer is responsible under this Section, the appropriate amount
\nshall be invoiced to and paid by Customer, unless Customer provides<\/p>\n
EMarketer with a valid tax exemption certificate authorized by the
\nappropriate taxing authority.
\n4.4 Canceling Your Account. Your EMarketer paid account will continue
\nin effect and will auto renew unless and until you cancel your paid
\naccount or we terminate it. You must cancel your paid account before it
\nrenews each month or year in order to avoid billing of the next month\u2019s
\nor year\u2019s fees to your credit card. EMarketer paid accounts are prepaid
\nand are non-refundable. EMarketer DOES NOT PROVIDE REFUNDS OR
\nCREDITS FOR ANY PARTIAL MONTHS OR YEARS. Except as specifically set
\nforth herein or on the Site, there are no refunds for any fees paid. YOU
\nARE SOLELY RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS
\nAGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY
\nTERMINATE YOUR ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD
\nOR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO
\nPROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
\nDuring the first 30 days of service, you may cancel your account at any
\ntime. After the first 30 days of service, EMarketer requires a 30-day
\nwritten notice for account cancelation. At the time of cancelation your
\naccount will be billed for any and all existing and\/or outstanding
\nProduct(s) and Service(s). During the 30 day cancelation period you will
\nbe billed for any Product(s) or Service(s) consumed during the 30 day
\ncancelation period.
\nEMarketer will bill the monthly or yearly fees associated with your paid
\naccounts to the credit card you provide to us during registration (or to a
\ndifferent credit card if you change your account information).
\nBy signing up for a EMarketer paid accounts and providing EMarketer
\nwith your payment account information, you hereby agree to these
\npayment terms and conditions.
\nPROPRIETARY RIGHTS<\/p>\n
5.1 Restrictions. Customer shall not, and shall not permit any third party
\nto: (a) modify, copy or create derivative works based on the Platform or
\nProducts; (b) frame or mirror any content forming part of the Platform or
\nProducts, other than on Customer\u2019s own intranets or otherwise for its
\nown internal business purposes; (c) reverse engineer, de-compile,
\ndisassemble or otherwise attempt to discover the source code of the
\nPlatform or Products; or (d) access the Platform or Products in order to
\n(i) build a competitive product or service, or (ii) copy any ideas, features,
\nfunctions or graphics of the Platform or Products.
\n5.2 EMarketer Intellectual Property. EMarketer reserves all rights, title, and
\ninterest in and to the Platform, the Products, and the Services, including
\nall related patent, copyright, trademark and other intellectual property
\nrights. No rights are granted to Customer hereunder other than as
\nexpressly set forth herein. In addition, EMarketer shall own all rights, title,
\nand interest, including all intellectual property rights, in and to any
\nimprovements to the Platform or Products, including without limitation
\nthose relating to any new programs, upgrades, modifications,
\nrefinements, feedback, comments or enhancements (collectively,
\n\u201cImprovements\u201d) developed by or for EMarketer in connection with
\nproviding the Platform or Products to Customer, even when such
\nImprovements result from Customer\u2019s request. To the extent, if any, that
\nownership in such Improvements does not automatically vest in
\nEMarketer by virtue of the Agreement or otherwise, Customer hereby
\ntransfers and assigns to EMarketer all rights, title, and interest that
\nCustomer may have in and to such Improvements.
\n5.3 Customer\u2019s Intellectual Property. As between EMarketer and
\nCustomer, Customer exclusively owns all rights, title and interest in and
\nto all Data. Unless, Customer agrees to a reduced costs or free offering
\nto use products will allow EMarketer right to utilize all data. In addition, all
\ncontent created by, or by EMarketer for, Customer during performance
\nof the Services, including without limitation email templates, newsletters,<\/p>\n
distribution lists, links, images, graphs and photos (the \u201cWork Product\u201d),
\nshall be the sole and exclusive property of Customer. EMarketer agrees
\nthat it will not use the same Work Product created for Customer under
\nthis Agreement for another EMarketer customer; provided, however, that
\nnothing in the preceding sentence shall be interpreted to preclude
\nEMarketer from using the same functionality, format, code, design,
\nconcepts, workflows, integrations or other ideas represented in the Work
\nProduct. Further, EMarketer shall be allowed to utilize \u201cmeta-data\u201d
\nresulting from customer sends (specifically including \u201chard\u201d and \u201csoft\u201d
\nbounce data), feedback loops and reporting metrics, to optimize
\ndeliverability for Customer and for other EMarketer Customers. For all
\nother deliverables described in a Statement of Work which are not
\ndeemed Work Product, EMarketer hereby grants Customer a limited,
\nnonexclusive, nontransferable, revocable license to use such other
\ndeliverables during an applicable Subscription Term.
\n5.4 Publicity; Trademarks. Neither party may issue press releases or any
\nother public announcement of any kind relating to the Agreement
\nwithout the other party\u2019s prior written consent. Notwithstanding the
\nforegoing, during an applicable Subscription Term, either party may
\ninclude the names, trademarks and other logos of the other party
\n(collectively the \u201cMarks\u201d) in lists (including on its website) of customers
\nor vendors in accordance with the other party\u2019s standard usage
\nguidelines relating to its Marks. In addition, EMarketer may use the
\nCustomer\u2019s Marks in connection with its authorized provision of the
\nPlatform and solely to the extent Customer has uploaded or
\nincorporated such Marks into the form of communication to be
\ndelivered, and has initiated the distribution of the same, through its use
\nof the Platform. Except as set forth herein, neither party may use the
\nMarks of the other party without its prior written consent.
\nCONFIDENTIALITY
\n6.1 Definition of Confidential Information. \u201cConfidential Information\u201d<\/p>\n
means all confidential and proprietary information of a party
\n(\u201cDisclosing Party\u201d) disclosed to the other party (\u201cReceiving Party\u201d) that
\n(a) if disclosed orally is designated as confidential at the time of
\ndisclosure, (b) if disclosed in writing is marked as \u201cConfidential\u201d and\/or
\n\u201cProprietary\u201d, or (c) reasonably should be understood to be confidential
\ngiven the nature of the information and the circumstances of
\ndisclosure. Confidential Information shall include, without limitation, the
\nterms and conditions of the Agreement (including pricing and other
\nterms reflected in all Order Forms and SOWs), the Data, business and
\nmarketing plans, technology and technical information, financial
\ninformation, business strategies, practices, procedures, methodologies,
\nknow-how, product designs, and business processes. Confidential
\nInformation (except for Data) shall not include any information that: (i) is
\nor becomes generally known to the public without breach of any
\nobligation owed to the Disclosing Party by the Receiving Party; (ii) was
\nknown to the Receiving Party prior to its disclosure by the Disclosing
\nParty; (iii) was independently developed by the Receiving Party without
\nuse of the Confidential Information of the Disclosing Party; or (iv) is
\nrightfully received from a third party not known by the Receiving Party to
\nbe subject to an obligation owed to the Disclosing Party.
\n6.2 Confidentiality. The Receiving Party shall use practices consistent
\nwith generally accepted industry standards to protect the security of
\nConfidential Information it receives from the Disclosing Party and to
\nprevent the disclosure or use any such Confidential Information for any
\npurpose other than to fulfill the purpose of the Agreement.
\nNotwithstanding the foregoing: (a) the Receiving Party may disclose
\nsuch Confidential Information to its employees and that prior to
\ndisclosure it will cause such employees and contractors to agree to be
\nbound by terms and conditions of confidentiality substantially similar to
\nthose in this MSA; and (b) each party may disclose the existence and
\nterms of the Agreement: (i) in confidence, to a potential purchaser of or
\nsuccessor to any portion of such party\u2019s business; (ii) to its attorneys,<\/p>\n
accountants and other advisors having a need to know the same; and
\n(iii) if necessary to enforce its rights under the Agreement, provided that
\nthe Receiving Party uses reasonable efforts to limit such disclosure and
\nto obtain confidential treatment of, or a protective order governing, the
\nterms of the Agreement.
\n6.3 Compelled Disclosure. If the Receiving Party is requested to, or
\nsubject to a legal obligation to, disclose Confidential Information of the
\nDisclosing Party, it shall provide the Disclosing Party with notice of the
\nsame as early as reasonably practical (if legally permitted) and
\nreasonable assistance, at Disclosing Party\u2019s cost, if the Disclosing Party
\nwishes to contest the disclosure.
\n6.4 Remedies. If the Receiving Party discloses or uses (or threatens to
\ndisclose or use) any Confidential Information of the Disclosing Party in
\nbreach of the confidentiality protections hereunder, the Disclosing Party
\nshall have the right, in addition to any other remedies available to it, to
\nseek immediate injunctive relief to enjoin such acts, it being specifically
\nacknowledged by the parties that any other available remedies may be
\ninadequate. Customer acknowledges that EMarketer is unable to
\nguarantee absolute security of Data or Confidential Information and
\nthat EMarketer has no liability to Customer for any unauthorized access
\nor use of such Data or Information by a third party, or the corruption,
\ndeletion, destruction or loss of any such Data or Information, unless
\nEMarketer\u2019s security practices are below generally accepted industry
\nstandards.
\n6.5 Survival. Notwithstanding the expiration or termination of this MSA for
\nany reason, the obligations of confidentiality and non-use set forth in
\nthis Section shall extend for a period of five years after such expiration
\nor termination, except with respect to either party\u2019s trade secrets or to
\naudit reports and findings belonging to EMarketer\u2019s third party
\ndatacenters, all of which shall be held in confidence indefinitely.<\/p>\n
WARRANTIES & DISCLAIMERS
\n7.1 Mutual Warranties. Each party represents and warrants that: it has
\nthe legal power to enter into the Agreement; the signatory hereto has
\nthe authority to bind the applicable organization; and when executed
\nand delivered, the Agreement will constitute the legal, valid, and binding
\nobligation of each party, enforceable in accordance with its terms.
\n7.2 EMarketer Warranties. EMarketer represents and warrants that: (a)
\nthe functionality of the Platform will not be materially decreased during
\nthe Term; (b) it will utilize software and other security means designed to
\nprevent the Platform from containing or transmitting Malicious Code; (c)
\nit owns or otherwise has sufficient rights in the Platform and Products to
\ngrant to Customer the rights to use the Platform and Products granted
\nherein; and (d) the Services will be performed in a professional and
\nworkmanlike manner in accordance with generally accepted industry
\nstandards.
\n7.3 Customer Warranties. Customer represents and warrants that: (a)
\nthe Data does not and will not infringe on any copyright, patent, trade
\nsecret or other proprietary right held by any third party and was not and
\nwill not be gathered or used by Customer in a manner that violates
\nApplicable Law; (b) it will not use the Platform or any Product in a
\nmanner that violates Applicable Law; and (c) it will not upload to or send
\nthrough the Platform or any Product any social security numbers,
\npassport numbers, financial account numbers, or credit card
\ninformation (as contemplated by the Payment Card Industry Data
\nSecurity Standards), post, publish or transmit any text, graphics, or
\nmaterial that: (i) is false or misleading; (ii) is defamatory; (iii) invades
\nanother\u2019s privacy; (iv) is obscene, pornographic, or offensive; (v)
\npromotes bigotry, racism, hatred or harm against any individual or
\ngroup; (vi) infringes another\u2019s rights, including any intellectual property
\nrights; or (vii) violates, or encourages any conduct that would violate,
\nany applicable law or regulation or would give rise to civil liability, send<\/p>\n
unsolicited email, junk mail, \u201cspam,\u201d or chain letters, or promotions or
\nadvertisements for products or services. Any violations under this
\nsection may result in account termination for cause as expressly
\nallowed in Section 10.3 of this Agreement.
\n7.4 Digital Millennium Copyright Act Compliance. Customer represents
\nand warrants that: You will only upload, post, submit or otherwise
\ntransmit data and\/or files: (i) that you have the lawful right to use, copy,
\ndistribute, transmit, or display; or (ii) that does not infringe the
\nintellectual property rights or violate the privacy rights of any third party
\n(including, without limitation, copyright, trademark, patent, trade secret,
\nor other intellectual property right, or moral right or right of publicity).
\nEMarketer has adopted and implemented a policy that permits the
\ndeletion of files that violate this policy, and that permits the termination
\nin appropriate circumstances of the accounts of users who repeatedly
\ninfringe or are believed to be or are charged with repeatedly infringing
\nthe rights of copyright holders. Any violations under this section may
\nresult in account termination for cause as expressly allowed in Section
\n10.3 of this Agreement.
\n7.5 Canadian Anti-Spam Legislation (CASL). Customer acknowledges it is
\ntheir obligation to conform to CASL regulations. To that end, customer
\nagrees explicitly to abide by all provisions of the Canadian Law relative
\nto email including its obligations to (a) Email only to individuals in
\nCanada who have strictly opted-in to receive communications (Email,
\nSMS, or otherwise) from Customer; (b) Retain specific and detailed
\nrecords associated with that Customer opt-in including Opt-In Time,
\nOpt-In Date, Opt-In Type, Opt-In Method, Opt-In Source, Proof of direct
\nrelationship of the opt-in; (c) Promptly honor requests for opt-in
\ninformation and promptly honor opt-out (unsubscribe) requests; (d)
\nReconfirm the direct relationship with the client via opt-in every 12
\nmonths. Any violations under this section may result in account<\/p>\n
termination for cause as expressly allowed in Section 10.3 of this
\nAgreement.
\nFurther, in addition to the Indemnification provision in Section 8 below,
\nCustomer further acknowledges that it is solely responsible for
\nconforming to CASL regulations and accordingly indemnifies EMarketer
\nagainst any breach of CASL that may be caused by Customer\u2019s use of
\nthe EMarketer platform, including but not limited to the payment of any
\nfines.
\n7.6 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND
\nTO THE MAXIMUM EXTENT PERMITTED BY LAW, EMarketer EXPRESSLY
\nDISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND
\nGUARANTEES WITH RESPECT TO THE SERVICES, PLATFORM AND PRODUCTS,
\nWHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE
\nOF DEALING OR COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN
\nSTATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
\nEMarketer DOES NOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER
\nMAY OBTAIN BY RECEIVING THE SERVICES OR USING THE PLATFORM OR ANY
\nPRODUCT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,
\nINCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY,
\nSUITABILITY FOR USE OR PERFORMANCE OF THE PLATFORM OR ANY PRODUCT,
\nNOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY
\nBY EMarketer.
\nINDEMNIFICATION
\n8.1 By EMarketer. EMarketer shall defend, indemnify and hold Customer,
\nits Affiliates, and their respective officers, directors, agents and
\nemployees, harmless against any loss, damage or costs (including
\nreasonable attorneys\u2019 fees) (\u201cLosses\u201d) incurred in connection with any
\nclaim, demand, suit or proceeding (\u201cClaim\u201d) made or brought against
\nCustomer by a third party relating to: (a) EMarketer\u2019s violation of
\nApplicable Law in (i) providing the Services or (ii) making the Platform<\/p>\n
and\/or Products available to Customer; (b) negligent acts or omissions
\nof EMarketer resulting in a breach of the confidentiality obligations set
\nforth in Section 6; and\/or (c) Customer\u2019s use of the Platform or any
\nProduct in a manner permitted by the Agreement that infringes the
\nintellectual property rights of such third party; provided, however, that
\nEMarketer shall have no such indemnification obligation if the Claim
\nrelates (i) to a third-party Product made available through the Platform
\nor (ii) to use of the Platform or an EMarketer Product in combination with
\nData, Marks, software, data products, processes, or materials not
\nprovided by EMarketer and the infringement would not have occurred
\nbut for the combination.
\n8.2 By Customer. Customer shall defend, indemnify, and hold EMarketer,
\nits Affiliates, and their respective officers, directors, agents and
\nemployees, harmless against any Loss incurred in connection with any
\nClaim made or brought against EMarketer by a third party alleging that:
\n(a) Customer has used the Platform or any Product in a way that
\nviolates Applicable Law or the Agreement; and (b) Data, and\/or any
\nmaterials provided to EMarketer necessary to perform the Services,
\ninfringe upon or violate the intellectual property, privacy, or other rights
\nof a third party.
\n8.3 Procedure. As an express condition to the indemnifying party\u2019s
\nobligation under this Section 8, the party seeking indemnification must:
\n(a) promptly notify the indemnifying party in writing of the applicable
\nClaim for which indemnification is sought; provided, however, that any
\ndelay in notification shall not relieve the indemnifying party of its
\nobligations hereunder except to the extent that the delay materially
\nimpairs its ability to defend the applicable Claim or perform its
\nindemnification obligations hereunder; and (b) provide the
\nindemnifying party with all non-monetary assistance, information and
\nauthority reasonably required for the indemnifying party to defend and
\nsettle such Claim. The indemnifying party may select counsel of its<\/p>\n
choice to defend the Claim and direct the course of any litigation or
\nother disputed proceedings concerning the Claim. The indemnified
\nparty may select its own counsel and direct its own defense of a Claim if
\nit chooses to do so, but it must bear the costs of its own counsel and any
\nactivities in any disputed proceeding conducted by counsel of its
\nchoosing. The indemnifying party may settle any Claim, with the
\nconsent of the indemnified party, such consent not to be unreasonably
\nwithheld, conditioned or delayed.
\nLIABILITY LIMITATIONS
\n9.1 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION
\nOBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL EITHER PARTY\u2019S
\nLIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN
\nCONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE
\nAGGREGATE SUMS PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS
\nPRECEDING THE INCIDENT GIVING RISE TO LIABILITY; PROVIDED, HOWEVER,
\nTHAT IN NO EVENT SHALL CUSTOMER\u2019S LIABILITY TO EMarketer BE LESS THAN
\nTHE SUM OF ALL OUTSTANDING FEES AND EXPENSES OWED BY CUSTOMER OR
\nANY CUSTOMER AFFILIATE PLUS ALL INTEREST AND COLLECTION COSTS
\nASSOCIATED THEREWITH. NOTWITHSTANDING THE FOREGOING, CUSTOMER\u2019S
\nEXCLUSIVE REMEDY, AND EMarketer\u2019S ENTIRE LIABILITY, FOR ANY BREACH OF
\nTHE WARRANTIES IN SECTION 7.2(D) IS LIMITED TO RE-PERFORMANCE OF THE
\nSERVICES. IF EMarketer IS UNABLE TO RE-PERFORM THE SERVICES AS
\nWARRANTED WITHIN 30 DAYS OF RECEIPT OF WRITTEN NOTICE OF BREACH,
\nCUSTOMER SHALL BE ENTITLED TO RECOVER THE FEES PAID TO EMarketer FOR
\nTHE DEFICIENT SERVICES.
\n9.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT
\nSHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
\nINDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL
\nDAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED (INCLUDING BUT NOT
\nLIMITED TO LOST PROFITS AND LOSS OF GOODWILL), WHETHER IN CONTRACT,<\/p>\n
TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE
\nPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
\nTERM & TERMINATION
\n10.1 Term of MSA. This MSA commences on the Effective Date and
\ncontinues until the termination or expiration of all Subscription Terms
\nspecified in all Order Forms and\/or of the terms specified in all SOWs
\n(the \u201cTerm\u201d).
\n10.2 Term of Subscriptions. Subscriptions to the Platform or a Product
\ncommence on the Start Date and continue for the Subscription Term
\nspecified in the applicable Order Form or Subscription. Unless otherwise
\nset forth in an Order Form or Subscription, subscriptions shall
\nautomatically renew for additional periods of one year for the fees set
\nforth in the applicable Order Form or Subscription unless either party
\ngives the other notice of non-renewal at least 30 days prior to the end of
\nthe then-current Subscription Term.
\n10.3 Termination; Surviving Provisions. EMarketer may, at our sole
\ndiscretion, terminate your account or your access to your account or
\nuse of the Site or the Product(s), disable your account or disable access
\nto the Site or the Product(s), remove all or a portion of your contacts and
\ncontent, cancel or suspend any of your events, or put your account on
\ninactive status, in each case at any time, with or without cause, with or
\nwithout notice and without refund.
\nWe shall have no liability to you or any third party because of such
\ntermination or action, except that we will refund a pro rata portion of
\nany prepaid amounts if we terminate you without cause.
\nAfter termination, you shall process all unsubscribe requests within 30
\ndays of your last email campaign. Upon request within 30 days of your
\ntermination, we will provide the list of unsubscribe requests from your
\naccount to you. Under the CAN-SPAM Act and Canada\u2019s Anti-Spam<\/p>\n
Legislation, you acknowledge that you are responsible for maintaining
\nand honoring the list of unsubscribe requests following termination of
\nyour account and this Agreement.
\nIf your account is classified (at our sole discretion) as inactive for over
\n120 days, we have the right to permanently delete any of your contacts
\nand content.
\n10.4 Surviving Provisions. Section 1 and Sections 4 through 11 shall survive
\nany termination or expiration of this Agreement, regardless of the cause
\nof termination.
\nGENERAL PROVISIONS
\n11.1 Relationship of the Parties; Third Party Beneficiaries. The Agreement
\ndoes not create a partnership, franchise, joint venture, agency, fiduciary,
\nor employment relationship between the parties. Unless otherwise
\nprovided in an Addendum, there are no third-party beneficiaries to the
\nAgreement.
\n11.2 Force Majeure. Neither party is responsible for delays or failures to
\nperform its responsibilities under the Agreement due to causes beyond
\nits reasonable control, including but not limited to acts of God, acts of
\ngovernment, flood, fire, earthquakes, tornadoes, civil unrest, acts of
\nterror, strikes or other labor problems, computer, telecommunications,
\ninternet service provider or hosting facility failures or delays involving
\nhardware, software or power systems, Malicious Code, denial of service
\nattacks, and inability to obtain energy (each a \u201cForce Majeure Event\u201d);
\nprovided, however, that it will resume performance as soon as
\nreasonably practicable.
\n11.3 Notices. Any notice, request, approval or written consent required
\nunder the Agreement shall be sufficiently given if in writing and
\ndelivered in person or mailed (certified or registered mail, return receipt
\nrequested) by one party to the other at the address set forth on the first
\npage hereof or to such other address as the recipient may<\/p>\n
subsequently furnish in writing to the sender. Notices to EMarketer shall
\nbe addressed to the attention of its General Counsel. Notices to
\nCustomer shall be addressed to Customer\u2019s signatory of this MSA unless
\notherwise designated in writing. Notice shall be effective upon receipt.
\n11.4 Waiver and Cumulative Remedies. No failure or delay by either party
\nin exercising any right under the Agreement shall constitute a waiver of
\nthat right. Other than as expressly stated herein, the remedies provided
\nherein are in addition to, and not exclusive of, any other remedies of a
\nparty at law or in equity.
\n11.5 Severability. Any provision of the Agreement which is prohibited and
\nunenforceable in any jurisdiction shall, as to such jurisdiction, be
\nineffective to the extent of such prohibition or unenforceability without
\n(a) invalidating the remaining provisions hereof if the essential
\nprovisions of the Agreement for each party remain valid, binding, and
\nenforceable, or (b) affecting the validity or enforceability of such
\nprovisions in any other jurisdiction.
\n11.6 Assignment. Neither party may assign the Agreement or any of its
\nrights or obligations hereunder, whether by operation of law or
\notherwise, without the prior written consent of the other party (not to be
\nunreasonably withheld, conditioned or delayed). Notwithstanding the
\nforegoing, either party may assign the Agreement in its entirety
\n(including all Order Forms and SOWs), without consent of the other
\nparty, in connection with a merger, acquisition, corporate
\nreorganization, or sale of all or substantially all of its assets not involving
\na direct competitor of the other party. Any attempt by a party to affect
\nan assignment in breach of this Section shall be void. Subject to the
\nforegoing, the Agreement shall bind and inure to the benefit of the
\nparties, their respective successors and permitted assigns.
\n11.7 Governing Law; Venue; JURY TRIAL WAIVER. The Agreement, and all
\nclaims arising out of or relating to its subject matter, shall be exclusively<\/p>\n
governed by and construed under the internal laws of the State of
\nIndiana, without regard to its conflicts of laws rules. Each party consents
\nto the exclusive jurisdiction of the state and federal courts located in
\nMarion County (Indianapolis), Indiana to adjudicate any claim arising
\nout of or relating to the Agreement or its subject matter. EACH PARTY
\nWAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ALL CLAIMS ARISING
\nOUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER.
\n11.8 Attorneys\u2019 Fees. If either party hereto files a legal proceeding arising
\nout of or relating to the Agreement or its subject matter, the prevailing
\nparty (as adjudged by a court or other fact finder) shall be entitled to an
\naward of all costs and expenses incurred in connection with such
\nproceeding, including but not limited to reasonable attorneys\u2019 fees and
\nexpert witness fees.
\n11.9 Entire Agreement. The Agreement, as defined herein, constitutes the
\nentire agreement between the parties with respect to the subject
\nmatter set forth in the Order Forms and SOWs executed by the parties
\nduring the Term, and supersedes all prior and contemporaneous
\nagreements, proposals or representations, written or oral, concerning its
\nsubject matter. No modification, amendment, or waiver of any provision
\nof the Agreement shall be effective unless in writing and signed by both
\nparties hereto. To the extent of any conflict or inconsistency between
\nthe provisions in the body of this MSA and any Addendum, Exhibit, Order
\nForm, or SOW, the terms of this MSA shall prevail unless expressly stated
\notherwise in such Addendum, Exhibit, Order Form, or SOW.
\nNotwithstanding any language to the contrary therein, no terms or
\nconditions stated in a Customer purchase order or in any other
\nCustomer order documentation (excluding Order Forms and SOWs)
\nshall be incorporated into or form any part of the Agreement, and all
\nsuch terms or conditions shall be null and void. The language used in
\nthis MSA shall be deemed to be language chosen by both parties hereto
\nto express their mutual intent, and no rule of strict construction against<\/p>\n
either party shall apply to rights granted herein or to any term of
\ncondition of this MSA. In the event of any asserted ambiguous term or
\ncondition herein, the parties agree that the principle that ambiguities
\nshall be construed against the drafter shall not be employed. Each party
\nrepresents and warrants that, in deciding to execute the Agreement, it
\nhas not relied and should not rely on any understandings,
\nrepresentations, inducements, warranties or promises, whether written
\nor oral and\/or whether express or implied, regarding the Agreement, the
\nmatters referenced in the Agreement or any other matters not
\nreferenced in the Agreement. Each party represents and warrants that it
\ndid not enter the Agreement based on any representation or omission
\nof any other party or its agents, and that any term not present in the
\nAgreement was not material to its decision to enter into the Agreement.
\n11.10 Counterparts. This MSA may be executed in counterparts, which
\ntaken together shall form one legal instrument. Delivery of an executed
\ncounterpart signature page of this MSA by facsimile, email, or other
\nelectronic transmission shall be effective as delivery of a manually
\nexecuted counterpart of this MSA.
\nCopyright \u00a9 2019 eMarketer is an LG Enterprises Company<\/p>\n","protected":false},"excerpt":{"rendered":"
MASTER SERVICES AGREEMENT EMarketer 6636 W. Bancroft St Toledo, OH 43615 AGREEMENT BETWEEN YOU AND EMarketer IMPORTANT-READ CAREFULLY: This Terms […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-73041","page","type-page","status-publish","hentry"],"yoast_head":"\n