MASTER SUBSCRIPTION & PROFESSIONAL SERVICES AGREEMENT
WHEREAS, FanMail is a fan-relationship management and digital marketing solutions agency for the music and entertainment industry;
WHEREAS, ExactTarget is a permission-based, one-to-one marketing software that is accessible via the Internet and delivered via a software as a service (SaaS) model, which software enables its clients to create, initiate, deliver, and track email and other one-to-one communications, and which is owned, controlled and maintained by ExactTarget, Inc.;
WHEREAS, FanMail is an official reseller and licensee of ExactTarget; and
WHEREAS, Customer desires to engage FanMail to deploy the ExactTarget software and to otherwise employ FanMail’s services as herein described;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS
Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
1.1 “Account” shall mean a separate password-protected account for a User within the Application Services identified by a unique member identification number. Specific types of Accounts include:
- “Admin Account” shall mean an Account providing access to the Application Services that can be accessed by Customer so as to provision and administer User Accounts.
- “User Account” shall mean an Account provisioned by Customer via the ExactTarget UI for the direct use by a client of Customer or for Customer to access and use on behalf of such client. User Accounts may be accounts providing access to any of the following editions of the Application Services: Core, Advanced, and Enterprise.
1.2 “Affiliate” shall mean, with respect to a party, any entity, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, 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.
1.3 “Application Services” shall mean those services offered by and through the ExactTarget application and as further described in the User Guide.
1.4 “CAN-SPAM Act” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.
1.5 “Confidential Information” shall have the meaning set forth in SECTION 6.
1.6 “Customer Data” shall mean all electronic data or information submitted by Customer to the Application Services.
1.7 “Documentation” shall mean, collectively, the operating instructions, user manuals, help files and other technical information and material, in written or electronic form, which are intended for use in connection with the Application Services.
1.8 “Duration” shall be as specified in each SOW and shall mean the estimated time from the Project Start Date to complete the Professional Services described in such SOW. Duration is an estimate of the time to complete the Professional Services and assumes that Customer’s availability, participation and cooperation have not delayed the Project Start Date or FanMail’s provision of the Professional Services.
1.9 “Intellectual Property” shall mean all (a) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (b) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (c) all derivatives of any of the foregoing.
1.10 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.11 “Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers.
1.12 “Order Form” shall mean the ordering documents for Customer’s purchases of Application Services from FanMail, as executed by the parties from time to time.
1.13 “Professional Services” shall mean the implementation, integration, consulting, and/or similar services to be provided to Customer by FanMail pursuant to the terms of a Statement of Work.
1.14 “Project Start Date” shall mean the date mutually agreed upon by the parties upon which FanMail shall commence provision of Professional Services under a Statement of Work.
1.15 “Services” shall mean the Application Services and Professional Services collectively.
1.16 “Start Date” shall mean the date on which the Application Services shall be made available to Customer as set forth in an applicable Order Form.
1.17 “Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Professional Services to be performed by FanMail for Customer and the fees applicable thereto. Each SOW shall be governed by the terms hereof. In the event of a conflict or inconsistency between a term in a Statement of Work and this Agreement, the terms set forth in this Agreement shall control unless the parties expressly agree otherwise in the applicable Statement of Work.
1.18 “Subscription Term” shall mean the subscription period set forth in an applicable Order Form.
1.19 “Term” shall have the meaning set forth in SECTION 10.
1.20 “UIGE Act” shall mean the Unlawful Internet Gambling Enforcement Act of 2006.
1.21 “User” shall mean Customer and any employees or independent contractors of Customer authorized to obtain access to, or receive the benefit of, the Application Services.
1.22 “User Guide” shall mean the online user guide for the Application Services, as updated from time to time.
SECTION 2. USE OF THE APPLICATION SERVICES
Pursuant to the terms and conditions of this Agreement and each Order Form, Customer may use the Application Services for its own internal business purposes, or on behalf of its clients, subject to the following:
2.1 Customer Responsibilities. Customer is responsible for all User activity that occurs within its Account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application Services, and notify FanMail promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Application Services. Customer shall not upload to, or store within, the Application Services (and the Customer Data shall not contain) any Non-Public Personal Information. Customer understands and acknowledges that: (i) FanMail and/or ExactTarget, in their reasonable discretion, may refuse to distribute any message content that FanMail and/or ExactTarget reasonably believes is defamatory, infringing, or otherwise unlawful; (ii) FanMail and/or ExactTarget, in their reasonable discretion, may refuse to distribute any email to any recipient that FanMail and/or ExactTarget reasonably believes has not granted permission (or otherwise “opted-in”) to Customer to send such message(s) or that FanMail and/or ExactTarget reasonably believes is unlawful; (iii) Neither FanMail nor ExactTarget has an obligation to review message content, recipient addresses or other Customer Data; (iv) all recipient addresses are supplied solely by Customer and neither FanMail nor ExactTarget has an obligation to supply or “scrub” any message recipient list; and (v) Customer is solely responsible for the creation, initiation and sending of messages via the Application Services, including, but not limited to, the content, recipients, and timing of such messages.
2.2 Use Guidelines. Customer shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party except as contemplated by this Agreement; (b) send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the Application Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the Application Services any Malicious Code; (e) interfere with or disrupt the integrity or performance of the Application Services or the data contained therein; or (f) attempt to gain unauthorized access to the Application Services or its related systems or networks.
SECTION 3. SUPPORT AND PROFESSIONAL SERVICES
3.1 Personnel; Use of Subcontractors. Subject to the provisions below and unless otherwise specified in the applicable SOW, FanMail shall supply all materials, equipment, and qualified personnel necessary to perform the Professional Services. FanMail may use subcontractors to perform the Professional Services. Any subcontractors used by FanMail shall have executed a written agreement with FanMail that obligates any such subcontractor to protect Customer’s Confidential Information to the same extent as is required of FanMail hereunder. FanMail shall be responsible for all acts and omissions of any such subcontractor to the same extent as if FanMail had performed the Professional Services.
3.2 Relationship to the Application Services. The Professional Services may be in support of Customer’s subscription to use the Application Services pursuant to an Order Form. No SOW grants Customer any rights to use the Application Services. Except as specifically set forth in a Statement of Work, Customer’s purchase of Professional Services is not contingent upon the delivery of any future functionality or features in the Application Services, nor is it dependent upon any oral or written public comments made by FanMail with respect to future functionality or features.
3.3 Non-Solicitation of Employees. During the Term and for a period of one year from the termination of this Agreement (the “Non-Solicitation Period”), Customer will not solicit or cause to be solicited for employment, directly or indirectly, any person who is employed by FanMail and directly involved in providing Professional Services hereunder without FanMail’s prior written consent. If FanMail does not give its consent to Customer and an employee of FanMail is employed by Customer at any time during the Non-Solicitation Period, then Customer shall pay FanMail a fee in the amount of one times the annual salary of such employee. Notwithstanding the foregoing, Customer may (a) hire any such person who has been terminated by FanMail before the commencement of employment discussions; (b) solicit and hire such person through general public advertisements that are not primarily targeted at such person; and/or (c) hire such person that Customer can prove was engaged in employment discussions with it prior to the Effective Date.
SECTION 4. PROPRIETARY RIGHTS
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, as between FanMail and Customer, FanMail reserves all rights, title and interest in and to the Application Services, including all related Intellectual Property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2 Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Application Services; (b) frame or mirror any content forming part of the Application Services, other than on Customer’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer the Application Services; or (d) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services.
4.3 Customer Data. As between FanMail and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. FanMail shall not access Customer’s Accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request.
4.4 Improvements. As between FanMail and Customer, FanMail shall own all rights, title and interest, including all Intellectual Property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by FanMail and/or ExactTarget in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in FanMail and/or ExactTarget by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to FanMail all rights, title, and interest which Customer or its Affiliates may have with respect to such refinements and improvements.
4.5 Professional Services Deliverables. FanMail hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes any materials developed by FanMail for Customer under a Statement of Work (“Deliverables”). FanMail shall retain all ownership rights to the Deliverables.
4.6 Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, during the Term, either party may include the name and logo of the other party in lists (including on its website) of customers or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines. In addition, FanMail may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Except as set forth herein, neither party may use the trademarks and trade names of the other party without the prior written consent of the other party.
SECTION 5. FINANCIAL TERMS
5.1 Fees; Payment Terms. The Services shall be provided to Customer and its clients at the prices set forth in the applicable Order Form or SOW. Customer shall pay invoices in accordance with the terms and conditions set forth on the applicable Order Form or SOW. Failure to so pay shall constitute a material breach of this Agreement. Customer shall pay late fees as set forth in the Order Form or SOW as a result of such late payment, and, among other remedies available to it, FanMail may discontinue its provision of the Services to Customer in accordance with SECTION 10 below.
5.2 Fees for Professional Services.
- Fixed Price. If the Professional Services are to be paid on a “Fixed Price” basis, FanMail will invoice Customer for work performed under the SOW. If FanMail is delayed in completing the Professional Services beyond the estimated duration as set forth in the SOW and such delay is due to Customer’s unavailability, failure to cooperate, failure to provide information required by FanMail to provide the Professional Services, and/or provision of materially inaccurate or misleading information, FanMail shall notify Customer that its performance of the Professional Services may be delayed. In such cases FanMail’s obligations may be reconsidered, the time to provide Professional Services may be extended, and FanMail may renegotiate the fixed fee.
- Time & Materials. If the Professional Services are to be paid on a time and materials (or “T&M”) basis, the Professional Services shall be provided at FanMail’s T&M rates in effect as of the Start Date of the Order Form. On a T&M engagement, if an estimated total amount is stated in the applicable SOW, that amount is solely a good faith estimate for Customer’s budgeting and FanMail’s resource scheduling purposes and not a guarantee that the Professional Services will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, FanMail will continue to provide Professional Services on a T&M basis under the same rates and terms.
5.3 Expenses. Customer shall reimburse FanMail for all reasonable and documented travel expenses resulting from the Professional Services and other Customer-requested offsite visits from FanMail employees and/or consultants (including mileage, airfare, hotel, and food). All such expenses shall be itemized and invoiced to Customer. Except as may be otherwise specified herein, each party will bear its own costs of performing under this Agreement.
5.4 Taxes. Each party shall be liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state or local governmental entity with respect to the net income recognized by such party in connection with this Agreement. Customer is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes and duties) resulting from Customer’s acceptance of the Application Services, excluding, however, any taxes payable by FanMail as a result of income earned by FanMail hereunder.
SECTION 6. CONFIDENTIALITY
6.1 Definition of Confidential Information. As used herein, “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, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer 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; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees and contractors who need to know the Confidential Information for purposes of performing or using the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. In any event, the parties shall seek to have the information disclosed in a manner reasonably calculated to protect the Confidential Information from further disclosure (e.g., under seal, en camera, etc.).
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 confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6.5 Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of two (2) years after such expiration or termination, provided that, with respect to Customer Information, the provisions contained in this Section shall continue indefinitely.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into this Agreement; (b) that the signatory hereto has the authority to bind the applicable organization; and (c) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
7.2 Customer Warranties. Customer represents and warrants that: (a) the Customer Data shall not infringe on any Intellectual Property right held by a third party; (b) Customer shall not use, and shall not permit use of, the Services in a manner that violates any international, federal, state, or local law or regulation, including, without limitation, those relating to individual privacy or the distribution of email and other one-to-one communications; (c) Customer shall not engage in any activity in violation of the UIGE Act, nor shall Customer use the Application Services, or permit the Application Services to be used, to advertise or otherwise promote any activities that would violate the UIGE Act; and (d) Customer has reviewed and executed the ExactTarget Anti-Spam Certification set forth on Exhibit 1 attached hereto and made a part hereof.
7.3 FanMail Warranties.
- Application Services. FanMail represents and warrants that: (a) software and other security means shall be utilized to prevent the Application Services from containing or transmitting Malicious Code; and (b) it owns or otherwise has sufficient rights in the Application Services to grant to Customer the rights to use the Application Services in accordance with the terms hereof.
- Professional Services. FanMail represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer must report any deficiencies in the Professional Services to FanMail in writing within ninety (90) days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this paragraph, Customer’s exclusive remedy, and FanMail’s entire liability, shall be the re-performance of the Professional Services. If FanMail is unable to re-perform the Professional Services as warranted within thirty (30) days of receipt of notice of breach, Customer shall be entitled to terminate the applicable SOW for cause and its sole remedy, if any, shall be to recover the fees paid to FanMail for the deficient Professional Services.
7.4 Disclaimer. excePT as otherwise specifically provided herein AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, FANMAIL AND EXACTTARGET EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY FANMAIL OR EXACTTARGET.
SECTION 8. INDEMNIFICATION.
8.1 By FanMail. FanMail shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that Customer’s use of the Application Services or Deliverables within the scope of this Agreement infringes the Intellectual Property rights of such third party; provided, however, that FanMail shall have no such indemnification obligation to the extent such infringement: (a) relates to use of the Application Services or Deliverables in combination with other software, data products, processes, or materials not provided by FanMail and the infringement would not have occurred but for the combination; (b) arises from or relates to modifications to the Application Services or Deliverables not made or authorized by FanMail; or (c) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by FanMail.
8.2 By Customer. Customer shall defend, indemnify, and hold FanMail harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a Claim that (a) Customer Data, and/or any materials provided to FanMail necessary to perform the Professional Services, infringe the Intellectual Property rights of a third party; (b) FanMail’s use of any Customer Data in connection with its provision of the Application Services has otherwise harmed a third party; (c) Customer has violated the UIGE Act and/or applicable laws related to personal privacy and the distribution of email and other one-to-one messages, including, but not limited to, the CAN-SPAM Act; or (d) Customer has violated any other warranty or representation contained herein.
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; and (b) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of 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, provided that if the indemnifying party fails or refuses to select counsel and undertake the defense of any such Claim within a reasonable time following notice thereof, the indemnified party may undertake such defense on its own behalf and all costs in connection therewith shall be promptly reimbursed by the indemnifying party. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
SECTION 9. LIMITATION OF LIABILITIES; DISCLAIMERS
9.1 UNDER NO CIRCUMSTANCES (A) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR SUCH PARTY’S LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (B) SHALL THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF FIVE HUNDRED THOUSAND DOLLARS ($500,000) OR AGGREGATE FEES PAID OR OWED BY CUSTOMER TO FANMAIL HEREUNDER.
9.2 THE EXCLUSIONS AND LIMITIATIONS OF SECTION 9.1 ABOVE DO NOT APPLY TO: (A) ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INCLUDING MISAPPROPRIATION BY CUSTOMER OF FANMAIL OR EXACTTARGET INTELLECTUAL PROPERTY; (B) ANY BREACH OF CUSTOMER’S UNDISPUTED PAYMENT OBLIGATIONS; OR (C) OBLIGATIONS OF INDEMNIFICATION SET FORTH IN SECTION 8.
SECTION 10. TERM AND TERMINATION
- Term of this Agreement. This Agreement shall commence on the Effective Date and shall continue until terminated as provided herein (the “Term”).
- Subscription Term. Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions to the Application Services shall automatically renew for additional one-year periods unless either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the relevant Subscription Term.
- Professional Services Term. The Term for Professional Services shall commence on the corresponding SOW Effective Date and continue until the Professional Services described therein are completed. FanMail may terminate a Statement of Work for convenience upon five business days’ prior written notice if Customer has not authorized work to begin under such SOW within 30 calendar days of the SOW Effective Date.
- A party may terminate this Agreement for cause: (a) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a voluntary petition in bankruptcy (or voluntary petition if that party fails to respond) or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. FanMail may immediately terminate this Agreement upon notice to Customer if (i) FanMail or Customer receives notice from any governmental entity that FanMail (in connection with its provision of the Application Services to Customer) or Customer is alleged to be in violation of the UIGE Act, or (ii) FanMail learns of any Customer activity that FanMail deems, in its sole discretion, to be in violation of the UIGE Act. Upon any termination for cause by Customer, FanMail shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to FanMail prior to the effective date of termination. Upon any termination for cause by FanMail, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
- Except as otherwise set forth in the preceding paragraph, upon the termination or expiration of this Agreement (a) Customer shall, and shall cause its Affiliates to, immediately discontinue use of the Application Services; and (b) each party shall immediately discontinue any use of the name, logotype, trademarks, trade names, service marks, service names or slogans and other marks of the other party and/or its products and services. Following the termination or expiration of this Agreement, Customer shall have thirty (30) days to access its account and download/export all User Data. FanMail shall delete all User Data within ninety (90) days of the termination or expiration of this Agreement.
SECTION 11. OUTAGE POLICY
CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER FANMAIL NOR EXACTTARGET WARRANTS THAT THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT FANMAIL AND/OR EXACTTARGET MAY OCCASIONALLY EXPERIENCE HARD OUTAGES DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN FANMAIL’S OR EXACTTARGET’S CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT BY FANMAIL.
SECTION 12. MISCELLANEOUS
12.1 Relationship of the Parties. The parties to this Agreement are independent contractors. This Agreement will not be construed to create a joint venture or partnership between the parties. Neither party will be deemed to be an employee, agent or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other except as may be specifically set forth herein.
12.2 Third Party Beneficiary. ExactTarget, Inc. is an intended third-party beneficiary to this Agreement and Customer shall be liable to ExactTarget, Inc. for any damages that arise due to Customer’s breach hereof to the same extent as if ExactTarget, Inc. had been a signatory to this Agreement.
12.3 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Ohio, without regard to the conflicts of law principals thereof. All proceedings relating to the subject matter hereof shall be maintained exclusively in the courts situated in Hamilton County, Ohio. Customer consents to personal jurisdiction and venue therein and waives any right to object to personal jurisdiction or venue.
12.4 Assignment. This Agreement may not be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), 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 attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
12.5 Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
12.6 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter herein. This Agreement supersedes all previous communications between the parties, whether written or oral, with respect to the subject matter herein.
12.7 Waiver and Modifications; Amendments. All waivers must be in writing. Any waiver or failure to enforce a provision of this Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion. This Agreement may only be amended by mutual written consent of the parties to this Agreement by an authorized representative of each party.
12.8 Partial Invalidity. If any provision of this Agreement for any reason shall be declared void, illegal, invalid, or unenforceable in whole or in part, such provision will be severable from all other provisions herein and will not affect or impair the validity or enforceability of any other provisions of this Agreement; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable.
12.9 Survival. SECTION 1 (Definitions), SECTION 4 (Intellectual Property), SECTION 6 (Confidentiality), SECTION 7 (Representations and Warranties), SECTION 8 (Indemnification), SECTION 9 (Limitation of Liabilities; Disclaimers), SECTION 10 (Term and Termination), and SECTION 12 (Miscellaneous) shall survive any expiration or termination of this Agreement for any reason.
12.10 Counterparts; Reproduction of Agreement. This Agreement may be signed in one or more counterparts, each of which shall be considered an original, but all of which together form one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (for example, photocopy or facsimile) is considered an original; provided, however, that this shall not preclude either party from requiring the exchange of original signatures.
12.11 Notices. Any legal notices required hereunder shall be given in writing at the address first set forth above, and shall be deemed to have been delivered and given for all purposes (a) on the delivery date, if delivered personally to the party to whom the same is directed; and (b) one business day after deposit with a commercial overnight carrier, with written verification of receipt. A copy of any such notice to FanMail shall be sent to Lassiter, Tidwell, Davis, Keller & Hogan, PLLC, 150 Fourth Avenue North, Suite 1850, Nashville, Tennessee 37219, Attn: Thomas David Ruth, Esq.
12.12 Attorneys’ Fees. In the event either party hereto shall resort to legal action for the redress of a breach of this Agreement, the prevailing party shall be entitled to an award of all costs and reasonable attorneys’ fees.
12.13 General Interpretative Provisions. Terms for which meanings are defined in this Agreement will apply equally to the singular and plural forms of the terms defined. The term “including,” whenever used in any provision of this Agreement, means including but without limiting the generality of any description preceding or succeeding such term. Whenever reference is made in this Agreement to “days,” the reference means calendar days, not business days, unless otherwise specified. Each reference to a party shall include a reference to such party’s permitted successors and assigns. The headings of this Agreement are for reference only and will not affect the meaning or interpretation of this Agreement. In each case in which a party’s approval or consent is expressly required under this Agreement, such party will not unreasonably withhold, condition or delay such approval or consent unless the context clearly states otherwise.
Exhibit 1: ExactTarget Anti-Spam Certification Form
In order to comply with federal law, email best practices, and the policies set forth by ISPs and other email filtering organizations, ExactTarget requires all clients to certify their compliance with ExactTarget’s Anti-Spam email policy as well as the opt-in status of any lists they distribute using the Application Services.
If you cannot provide the certifications requested below, please contact your ExactTarget representative to discuss the means by which your email distribution list(s) may be brought into compliance with our opt-in list requirements.
First Certification: ExactTarget Anti-Spam Policy
I, or another member of my organization, have read and understand ExactTarget’s Anti-Spam Policy (attached hereto).
Second Certification: List Source
I certify that is the owner of all email distribution lists distributed using the Application Services, and that is solely responsible for the composition and membership of each list.
Third Certification: List Opt-In Status
I certify that all subscribers to be used in connection with the Application Services have provided permission to to send them email.
Anti-SPAM at ExactTarget
Our clients certify that they will use our software only to send emails to customers and prospects that have directly consented (opted-in) to receive email. They are forbidden to transmit unsolicited commercial email (spam) via our system. ExactTarget does not buy or sell email lists, nor do we allow our clients to use purchased or harvested email lists (see below).
Additionally, ExactTarget offers confirmed opt-in as an optional tool for our clients to use to help minimize allegations of spam and abuse. When a list is designated as “confirmed opt-in,” ExactTarget’s system automatically sends a follow-up email to each subscriber on such lists asking the recipient to verify that they wish to receive communications via email. Only those subscribers responding affirmatively will be opted-in to future mailings sent via the ExactTarget system.
We additionally require that clients reconfirm (permission pass) or stop mailing an existing list when it is determined to be in violation of our anti-spam policies. Repeated violations or failures to comply with our policies will result in termination of that client’s access to the ExactTarget system.
Our clients agree not to send unsolicited email via our system. For any opt-in list of email addresses used in ExactTarget’s system, clients agree to provide us with the source of the email addresses, the method used for recipient signup, and details surrounding the process used, and whatever other information relates to the transaction or sign-up process used. This includes, but isn’t limited to, date and time of sign up, IP address of signup, website signed up from, and whatever other information the client asked of the recipient at point of sign up.
Our clients certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in. The use of opt-out lists is prohibited in our system. ExactTarget retains the right to review client lists and emails to verify that clients are abiding by the privacy and permission policies set forth herein. Our clients are required to comply with our policies and all applicable law.
How do we protect your privacy?
Why did you receive an email from our system?
You should only receive email from our system from some client of ours that you recognize signing up to receive email from. Our clients certify that all email addresses used in our system are opt-in names that have given permission to the client to send them email. As we indicate above, ExactTarget does not allow nor desire that any client use our email services to send unwanted mail or spam. If you don’t recognize who sent you the message, see the next section.
Reporting Unwanted Mail as Spam
If you don’t recognize who used the ExactTarget service to send you a given message, you can report it to us as spam by sending it to email@example.com. We receive, investigate, catalog, and take action based on these complaints. If you’re worried that we would simply “list wash” your address without further investigation, feel free to report the message to whatever spam reporting entity you feel most comfortable working with. Spamcop at provides an easy way to report unwanted mail as spam. You can also use your email provider’s (AOL, Hotmail, Yahoo) “report as spam” mechanism to notify the ISP that the message is spam. ISPs use this information to determine good senders from bad senders, and we regularly work with ISPs to take action based on that data. Alternately, there are reputable anti-spam blacklist groups that you can work with to identify an issue and inform service providers of that issue. We work with anti-spam blacklist groups and strive to address all issues to their satisfaction.
How do I get off an email list?
Each email sent through the ExactTarget system contains a link that allows subscribers to unsubscribe from receiving emails from the sender. Each email contains an easy and automated way for you to unsubscribe. You may also change your expressed interests at any time. If you wish to unsubscribe or change your interests, simply follow the instructions at the bottom of any email. If you have received an unwanted email sent by the ExactTarget system, please see above for options on how to handle and report an issue.
Will your information ever be shared, sold or rented?
We will never share, sell, or rent individual personal information without your advance permission, unless ordered by a court of law. Information submitted to us is available only to employees responsible for managing this data.