This Marketing Services Agreement (“Agreement”) is entered into as of the date payment is made (“Effective Date”) and is by and between Market Igniter, Inc. (“Market Igniter”) and the party indicated on the subscription sign-up page (“Subscription Page”) (“Client”). By clicking below the individual accepting these terms and conditions on the Subscription page warrants and represents that he or she is authorized to act on behalf of the Client and that Client shall be bound by terms of this Agreement.
1. Services: Market Igniter agrees to perform any or all of the following services for Client, as indicated on the Subscription Page: (a) search engine optimization, (b) reputation management, (c) pay-per-click advertising management, and (d) any other service offered on the Subscription Page (collectively and individually the “Services”).
2. Fees: Client agrees to pay the amounts indicated on the Subscription Page in exchange for the Services, plus the following amounts, where the parties have agreed (individually and collectively, the “Fees”):
(a) Pay-Per-Click Fee: 20% of the amount expended by Client on pay-per-click advertising, which shall be not less than $500 per month.
(b) Reimbursement: If by prior agreement and approval Market Igniter incurs expenses in performing the Services, Client will reimburse those pre-approved expenses, without mark-up.
Client acknowledges that, if indicated on the Subscription Page, recurring charges will be charged to the same credit card entered on the Subscription Page until Client changes or cancels such payment. If for any reason payment of the Fees is not received when due, Market Igniter may immediately cease providing Services until payment is received.
3. Standard: Market Igniter shall perform the Services in a professional and workmanlike manner in accordance with industry standards and complying with all applicable laws and regulations.
4. Confidentiality. Each Party (the “Receiving Party”) acknowledges that it may be provided with or otherwise learn confidential and/or proprietary information of the other Party (the “Disclosing Party”) (including without limitation the Disclosing Party’s intellectual property and certain information and materials concerning the Disclosing Party’s business, plans, customers, technology, services and products) that is of value to the Disclosing Party, which is identified as confidential at the time of disclosure or which ought in good faith to be considered confidential by the Receiving Party (“Confidential Information”). All Confidential Information remains the property of the Disclosing Party. Other than with the express written consent of the Disclosing Party, during the Term of this Agreement, and for a period of two (2) years after termination (with respect to non-trade secret Confidential Information of the Disclosing Party), and in perpetuity (with respect to trade secrets of the Disclosing Party), the Receiving Party agrees not to disclose or exploit Confidential Information of the Disclosing Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party only to its attorney, accountant and employees who need to know such Confidential Information for purposes permitted under this Agreement. The Receiving Party will protect the Confidential Information of the Disclosing Party in the same manner the Receiving Party uses to maintain the confidentiality of its own confidential information but in no event with less than reasonable care. The Receiving Party will give immediate notice to the Disclosing Party of any known unauthorized disclosure or exploitation of the Confidential Information and agrees to cooperate with the Disclosing Party in remedying such unauthorized use or disclosure. A Party who discloses or exploits the Confidential Information of the other Party without written authorization to do so shall be liable to such other Party for all Claims arising from such unauthorized disclosure or exploitation. Each Party agrees to return the other Party’s Confidential Information upon request therefore. The foregoing confidentiality obligations do not extend to Confidential Information which (i) becomes publicly available without the fault of the Receiving Party; (ii) is rightfully obtained by the Receiving Party from a third party who has the right to transfer such information without obligation of confidentiality; or (iii) was lawfully in the possession of the Receiving Party at the time of disclosure, without restriction on disclosure. Each Party agrees that injunctive or other equitable relief will be available to enforce this Article, without the necessity of posting a bond, cash or otherwise. If any restriction or covenant in this Agreement is held by any court to be unenforceable, then a lesser restriction will be enforced in its place and the remaining restrictions in this Agreement will continue to be enforced according to their terms.
5. Independent Contractors. This Agreement does not create any relationship of association, partnership or agency between the parties.
6. Notices. Any notice under this Agreement addressed to Client at the address it enters on the Subscription Page or to Market Igniter at its principal place of business, or such other address as the party may designate by written notice to the other party, shall be deemed given: (i) when actually delivered by hand, or via express courier service (with proof of delivery), or (ii) when mailed by registered or certified mail, return receipt requested, postage prepaid.
7. Term and Termination. The Term of this Agreement shall be one month. It will automatically renew on the anniversary of the Effective Date each month. Either party may terminate this Agreement with or without cause at any time upon thirty (30) days’ prior written notice to the other party. Within ten (10) days after any termination of this Agreement, each party will return all Confidential Information of the other party. Upon termination, and for a period of up to thirty (30) days, Market Igniter will provide reasonable assistance to Client to transition to a new service provider. If client requires any assistance after that period, it shall pay Market Igniter its then-current hourly rates for such services.
8. No Assignment. Each party is entering into this Agreement in substantial part based upon the reputation, business standing, and goodwill of the other party. Each party agrees that its rights and obligations under this Agreement may not be transferred or assigned directly or indirectly, whether in whole or in part without the prior written consent of the other party; provided, however, that this Agreement may be transferred or assigned in its entirety by either party to an affiliate of such party or in connection with a merger, acquisition, sale of all or substantially all of the assets of such party or similar transaction. Any unauthorized assignment will be null and void.
9. Non-Exclusivity. Except as expressly set forth herein, this Agreement does not create any exclusive arrangement between the parties, and each is free to enter into similar transactions or marketing or sales arrangements of any nature with any other person or entity.
10. Survival. Any provisions that by their nature suggest that continuance after termination is intended shall survive.
11. Limitation of Liability. In no event will either party be liable to the other for any loss of profits, or for any special, punitive, incidental, indirect or consequential damages of any kind, whether or not foreseeable, whether based on breach of contract, tort (including negligence), product liability, or otherwise, even if such party has been advised of the possibility of such damages. In addition, in no event will either party’s liability to the other under or relating to this Agreement exceed the amount paid to Market Igniter by Client during the three month period preceding any claim asserted by either party. No agents, members, officers, directors, managers, employees, shareholders, representatives, partners, or affiliates of either party, and their respective successors and assigns, shall be personally liable to the other party. Each party acknowledges that the foregoing limitation of liability is an essential element of this Agreement and that in its absence the economic terms of this Agreement would be substantially different.
12. Governing Law; Jurisdiction; Attorney’s Fees. This Agreement shall be governed by the law of Idaho, U.S.A., without respect to any conflict of laws provisions. All disputes and claims between the parties (''Disputes'') shall first be submitted to an authorized officer of each Party for prompt resolution. Any unresolved Disputes shall be filed and litigated only in, and the parties hereto expressly submit to the jurisdiction of, any federal or state court of competent jurisdiction in Idaho, U.S.A. EACH PARTY WAIVES ITS RIGHT TO TRIAL BY JURY. If a party fails to pay any amount due under this Agreement on time, it shall pay interest on the overdue amount in the amount of 15%, or the greatest amount allowed by law, whichever is less.
13. Warranty Disclaimer: SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO THE PARTIES. EXCEPT AS EXPRESSLY STATED HEREIN, MARKET IGNITER DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WTIHOUT LIMITATION THE IMPLIED WARRRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MARKET IGNITER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ALL CLIENT’S EXPECTATIONS. ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” No representation is made as to the results that shall be obtained through the Services. Client’s sole and exclusive remedy, if Client is unsatisfied with the Services, is to terminate this Agreement.
14. Miscellaneous. Each party agrees: (i) the headings are for convenience and are not part of this Agreement; (ii) a waiver of any provision of this Agreement must be in writing and signed by both parties, and no course of conduct shall be deemed a waiver; (iii) there are no third party beneficiaries to this Agreement; (iv) this Agreement may be executed in counterparts; (v) this Agreement constitutes the entire agreement between the parties as of the Effective Date and may only be modified by an instrument in writing signed by both parties; (vi) any illegal, void or invalid provision can be severed from this Agreement without impairing or affecting any remaining provisions; (vii) this Agreement will bind and inure to the benefit of each party and their respective successors and assigns; and (viii) this Agreement will not be construed more strongly against the drafter of it, and any rules of construction to the contrary are hereby specifically waived. Client will allow Market Igniter to refer to Client as a customer and grants to Market Igniter a limited, non-exclusive license to use Client’s logo for that single purpose.
LICENSE PROVISIONS
15. License Provisions. If Client chooses to use Market Igniter’s Software (defined below) and so indicates on the Subscription Page, then in addition to the foregoing, the following terms and conditions will apply (for purposes of the following sections, Client shall be referred to as “Licensee”):
16. CERTAIN DEFINITIONS. For purposes of this Agreement, the term “Licensed Deliverables” shall mean any and all of the following:
17. LICENSE GRANT. Market Igniter hereby grants, and Licensee hereby accepts, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-sublicensable (except as expressly set forth herein), non-transferable, license during the term of this Agreement to use the Licensed Deliverables as set forth herein (the “License”). Licensee shall not have any rights to the Licensed Deliverables except as expressly granted in this Agreement. Market Igniter reserves to itself all rights to the Licensed Deliverables not expressly granted pursuant to this Agreement.
18. COPYRIGHT and TITLE.The Licensed Deliverables and any copy thereof, in whole or in part, and all copyrights, trade secrets and other proprietary rights therein, including any Derivative Work are and will remain the sole property of Market Igniter, regardless of the use made by Licensee or any permitted sublicensee of the same and in any format; and are protected by certain United States and international copyright laws and trademark laws. The License confers no title of ownership in the Licensed Deliverables and is not a sale of any rights in the Licensed Deliverables. Licensee shall treat the Licensed Deliverables with at least the same standard of care as it treats any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. Licensee agrees not to, and to use best efforts to cause its customers and any permitted sublicensees not to, challenge Market Igniter’s ownership in or enforceability of Market Igniter’s rights in and to any Licensed Deliverable or any related information technology.
19. WARRANTY and INDEMNITY. Market Igniter shall defend, indemnify and hold harmless Licensee, its parent company and their respective affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), judgments and claims on the basis that Market Igniter has breached the terms of this Agreement or that Licensee’s authorized use of the Software violates or infringes any third party intellectual property rights; provided that (a) Licensee gives Market Igniter prompt written notice of the claim; (b) Market Igniter has full and complete control over the defense and settlement of the claim; (c) Licensee provides assistance in connection with the defense and settlement of the claim as Market Igniter may reasonably request; and (d) Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Market Igniter shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion. Market Igniter will have no obligation under this section for any infringement to the extent that it arises out of or is based upon: (i) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the License; (iv) Licensee’s or any permitted sublicensee’s failure to use the latest releaseof the Software or to comply with instructions provided by Market Igniter, if the alleged infringement would not have occurred but for such failure; or (v) any modification of the Software not made by Market Igniter where such infringement would not have occurred absent such modification. Licensee will reimburse Market Igniter for any costs or damages that result from these actions. This section states Market Igniter’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement by Market Igniter of any third party intellectual property right by the Software.
20. USE OF LICENSED DELIVERABLES. The Licensed Deliverables are for Licensee’s use for its own business purposes. If there is unauthorized use by anyone who obtained access to the Licensed Deliverables directly or indirectly through Licensee, Licensee shall take all steps reasonably necessary to terminate the unauthorized use. Licensee will cooperate and assist with any actions taken by Market Igniter to prevent or terminate such unauthorized use.
21. UPDATES AND SUPPORT SERVICES. Market Igniter will provide updates to the Software, and, if applicable, the Add-ons. Updates, but not Add-ons, shall be provided to Licensee without additional charge. Market Igniter will provide Licensee with two-tier support as long as Licensee is not in default of any material terms of this Agreement as follows: Market Igniter will provide tier one support to Licensee for critical Software failures resulting in complete or substantial shutdown of the Software within one (1) business day of any request, and Market Igniter will respond to all other support requests as soon as reasonably and commercially practical on an as-needed basis at its own cost and expense. The support in using the Licensed Deliverables may occur at the discretion of Market Igniter by phone, email, or mail request(s) to Market Igniter for help on incidental needs related to use of Software.
22. TRADE SECRETS. The Licensed Deliverables are trade secrets of Market Igniter and contain valuable proprietary products and trade secrets of Market Igniter, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee shall take reasonable actions to protect the confidentiality of the Licensed Deliverables. Licensee shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Licensed Deliverables in whole or in part, or otherwise use, copy, reproduce or distribute any Licensed Deliverable except as expressly permitted hereunder. The provisions of this section shall survive the termination of this Agreement.
23. OTHER RESTRICTIONS. Licensee may not rent, loan, license, market, or sell the Licensed Deliverables or copies thereof, in whole or in part, to any party. Licensee hereby agrees (i) to notify its employees and agents who may have access to the Licensed Deliverables or Information of the restrictions contained in this Agreement and (ii) to ensure their compliance with such restrictions.
24. LIMITATION ON LIABILITY. In no event will Market Igniter, its suppliers, shareholders, officers, employees or agents be liable for any lost profits, indirect, incidental, special, punitive or consequential damages, including damages due to loss of data or goodwill, arising out of this Agreement or the use of or reliance upon the Licensed Deliverables or Information, even if Market Igniter has been advised of the possibility of such damages. In no event shall Market Igniter be liable for procurement costs of substitute products or services or any unauthorized use or misuse of any Licensed Deliverables or Information, except in the case of Market Igniter’s gross negligence with respect to such use or misuse. Licensee assumes responsibility for the installation, use and results obtained from the Licensed Deliverables. UNDER NO CIRCUMSTANCES WILL Market Igniter’s TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO Market Igniter DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). The parties agree that this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. Because some states may not allow the exclusion or limitation of consequential or incidental damages, such limitations may not apply to Licensee.
25. DEFENSE. Licensee will defend Market Igniter from any actual or threatened third party claim arising out of or based upon Licensee’s or any sublicensee’s use of the Licensed Deliverables or Licensee’s breach of any of the provisions of this Agreement (or any sublicensee’s breach of any applicable agreement). Market Igniter will: (a) give Licensee prompt written notice of the claim; (b) grant Licensee full and complete control over the defense and settlement of the claim; (c) assist Licensee with the defense and settlement of the claim as Licensee may reasonably request and at Licensee’s expense; and (d) comply with any settlement or court order made in connection with the claim.
26. INDEMNIFICATION. Licensee shall indemnify Market Igniter against: (a) all damages, costs, and attorneys’ fees finally awarded against Market Igniter in any proceeding under the foregoing section; (b) all out-of-pocket costs (including reasonable outside attorneys' fees) reasonably incurred by Market Igniter in connection with the defense of such proceeding (other than Licensee has accepted defense of such claim); and (c) if any proceeding arising under the foregoing section is settled, Licensee will pay any amounts to any third party agreed to by Licensee in settlement of any such claims.
