These Terms of Service (“Agreement”) are a contract entered into between Market Results Ventures LLC, with its principal place of business at 3765 Sancroft Avenue, West Bloomfield, MI, 48324, USA, (“Contractor”), and the individual and/or entity or agent (“Customer”) identified in the Memorandum of Understanding (“MOU”). These Agreement terms are the general terms and conditions governing Customer’s use of the electronic communication, document generation, data collection, enhanced contact database, enhanced marketing collateral, storage, hosting, and professional services (collectively the “Service”) made available by Contractor directly or through Contractor’s partners and their respective web sites, including but not limited to www.marketresults.com (“Site”), and/or third party partner’s web site or web portal.  Contractor may make changes to these Agreement terms, and continued use of the Service constitutes Customer’s acceptance of any such changes. In addition, when using particular Market Results Service, Customer and Market Results shall be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time.

READ THESE TERMS CAREFULLY BEFORE COMPLETING MOU TO USE THE SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR ANY PART THEREOF, YOUR ONLY REMEDY IS TO NOT ACCESS THE SERVICE AND NOT USE THE SERVICE. BY USING THE SERVICE, YOU INDICATE YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS.

1.        DEFINITIONS

1.1        “Applicable Fees” means the Compensation Items and those fees due and payable by Customer upon its execution of the MOU, as set forth in the MOU.

1.2        “Confidential Information” means any information disclosed by one party to this Agreement to the other party, consisting of information (including any copies, extracts, summaries or adaptations of such information), regardless of the form of its disclosure, that is either:  (i) clearly marked as “Confidential” or “Proprietary” at the time of disclosure; (ii) that by its nature or by the circumstances in which it is disclosed, ought reasonably be considered to be confidential; or (iii) pertains to or describes, in any way, Contractor’s technologies, computer software or database design, business methodologies, financial models, or related information.  For the purposes of this Agreement, the parties agree that the Software (as defined in Section 1.10 below), the Content (as defined in Section 1.3 below), the Documentation (as defined in Section 1.4 below), and the terms of this Agreement and MOU (as defined in Section 1.9 below), and all other documents in connection therewith as well as the results of any tests run on the Software shall be deemed to be Contractor’s Confidential Information.

1.3        “Content” means all audio, written, and visual information, in digital or other physical embodiment, contained in or made available through the Site, Project (as defined in Section 1.7 below), Software, or Documentation.

1.4        “Documentation” means any Contractor’s instructional or supplementary materials or enhanced Customer marketing collateral related to the Project, Software or the Site, in human or machine readable form, that is provided to Customer but only to the extent that such materials are or were generally available for commercial distribution.  

1.5        “Intellectual Property Rights” means patents and other patent rights (including patent disclosures and applications and patent divisions, continuations, continuations-in-part, reissues, re-examinations, and extensions thereof), copyrights, and other rights in works of authorship (including registered and unregistered copyrights and unpublished works of authorship), trademarks, service marks, trade secrets, know-how, trade dress, and all other forms of intellectual property for everywhere in the world.

1.6        “MOU” means the Memorandum of Understanding signed between the Parties, and any change order signed by the Parties with reference to the MOU.

1.7        “Project” means the Project as defined in the MOU, and the marketing strategy and Service to generate from the Targeted Decision Maker Database (as defined in Section 1.12 below) qualified sales leads so that Customer may attempt to make sales to such leads by means of personal contact by Customer personnel.

1.8        “Professional Services” means the services to be performed in fulfillment of the Project, as outlined in the MOU.

1.9        “Software” means the Contractor or Contractor’s partners software and the Targeted Decision Maker Database and any revisions or upgrades thereto or new versions thereof that Contractor makes available to Customer as part of the Project. 

1.10        “Targeted Decision Maker Database” means Contractor’s database of business contacts, potential leads, and other data developed or used in connection with the Project.

1.11        “Term” means the term defined in the MOU or in any future MOU (as defined in Section 14.2).

1.12        “Use” means to access, execute, employ, utilize, or display the Software, the Site (including the upload and download of data as well as the manipulation of data in the Targeted Decision Maker Database), or Content for Customer’s internal business purposes and not for redistribution, remarketing, or third-party use.  Use is deemed to occur where any such process occurs and at any computer terminal or workstation that initiates or is activated by any such process.

1.13        “Contractor Documents” means this Agreement, the MOU, the NDA, and any other documents in connection therewith, that are signed by both parties.

2.        LICENSE

2.1        License Grant.  Subject to the terms and conditions of the Contractor Documents, and the timely and full MOU payment and fullfillment of all Applicable Fees, Contractor hereby grants to Customer, and Customer hereby accepts from Contractor, a non-exclusive, non-transferable license to Use the Site, and the Content (and, to the extent necessary to Use the Site, a limited non-exclusive , non-transferable license to Use the Software) for the Term (the “License”).  Customer agrees that the License does not permit Customer to adapt, reproduce, sub-license, rent or otherwise make the Software, the Site, or the Content available to any third party.  All rights not expressly granted by Contractor to Customer are retained by Contractor, and Customer shall not use the Software, the Site, or the Content in any manner or for any purpose not expressly authorized by the Contractor Documents.

2.2        Use Restrictions.  Use of the Software, the Site, and the Content is restricted solely to Customer and its employees, agents, representatives, associates, Customer Representatives (as defined in Section 6.2 below), and any other individuals or entities assisting Customer with the Project (collectively, the “Customer Group”).  Customer assumes and acknowledges full responsibility for any failure on the part of any member of the Customer Group to comply with this Agreement.  The Customer Group shall, at all times, Use the Software, the Site, and the Content in accordance with the terms and conditions of the Contractor Documents and the Documentation.  No member of the Customer Group shall modify, enhance, translate, adapt, or create derivative works of the Software, the Site, or the Content; decompile, disassemble, or reverse engineer the Software; or make copies of the Software or the Content.

3.

PASSWORDS

3.1    Upon receipt of the fully-executed MOU and the Applicable Fees, Contractor may periodically provide to Customer personal, non-transferable user identification numbers (“Customer IDs”) and passwords (in the amount set forth, and as described, in the Payment Terms) to access the Software and the Site.  Customer is and will remain responsible for maintaining the confidentiality of the Customer Ids and passwords, for all activities conducted on the Site or via the Software that make use of the Customer IDs and passwords.  Customer will appoint in writing, and maintain on a continuous basis, an administrator to manage the Customer IDs and passwords.

4.

SERVICE AND SUPPORT

4.1        Installation and Training.  Contractor will configure and set up the Site for Customer’s Use based upon the Customer’s segmentation evaluated and enhanced by Contractor.

4.2        Service and Support.  Contractor hereby agrees to provide service and support for the Software and the Site during the Term.  Currently, this service and support consists of the following:  (i) hosting, (ii) help desk, and (iii) updates, as more fully described below.  Contractor may change this support from time to time, in its sole discretion.

4.2.1        Hosting services consist of:  (i) providing computer servers and hosting and server Internet communications twenty-four (24) hours a day, seven (7) days a week, and (ii) managing, and furnishing updates, for such systems to provide the appropriate level of security, responsiveness, and availability, without any service level warranty.

4.2.2        Help desk services consist of telephone, e-mail (help@marketresults.com), and web support during business hours (10:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday).  For an additional fee, which shall be mutually agreed upon between Contractor and Customer, Contractor may extend the help desk service hours and days to twenty-four (24) hours a day, seven (7) days a week. 

4.2.3

 All Software and/or Site Updates during the Term will be automatically licensed to Customer for Customer Use only.  The license for such items will be governed by the terms and conditions of this Agreement.

4.2.4

 Contractor or its partners may, without notice to Customer, update and otherwise modify the Site or Service in its sole discretion, including but not limited to providing updates or modifying features or functionality, or removing features or functionality (collectively “Updates”). This Agreement terms apply to all such Updates.

5.

CUSTOMER COLLATERAL APPROVAL PROCESS; BASE ASSUMPTIONS

5.1        Approval of Specifications.  Contractor will provide to Customer, for its review and approval, detailed specifications (the “Specifications”) of each of the collateral items (i.e., deliverables that will be sent to Customer’s clients, as outlined in the Proposal) to be produced by Contractor in the performance of the Professional Services.  Customer shall provide its approval within five (5) business days after receipt of the Specifications, and such approval shall constitute Customer’s authorization to commence work on that phase of the Professional Services.  

5.2        Changes to Specifications.  If Customer desires to make changes to the Specifications, then Customer will advise Contractor of the proposed changes in writing within the five (5)-day period referenced in Section 5.1.  Contractor will then provide Customer with a revised version of the Specifications, showing any changed costs and the timing impact that such changes will require, if applicable.  Customer will then have one (1) final opportunity to approve the Specifications, as revised, or to make further changes, which shall be completed within five (5) business days after delivery of the revised Specifications.  Customer’s approval of the revised Specifications will also constitute Customer’s approval of the change in the fees and timing, if any, resulting from the revisions to the Specifications.  

5.3        Delays in Approval Process.  Customer acknowledges that delays by Customer in its review and approval of the Specifications will lengthen the time and costs needed to complete the Project.  Contractor and Customer will agree to a mutual process to track progress and issues.  Any re-authoring costs will be billed to Customer separately, using Contractor’s standard billing rates, and shall be due net thirty (30) days of the invoice date.  

5.4        Base Assumptions.  Unless noted differently in the MOU, Contractor and Customer will use a base set of specific assumptions for the Project.  Such assumptions are listed in in Exhibit A, which is incorporated herein by reference.

6.

REPRESENTATIVES

6.1        To Be Appointed by Contractor.  Contractor will appoint in writing the following persons to interact with Customer in the administration of the Project and the services performed in connection therewith:  (i) Campaign Strategist and/or Project Team Leader, (ii) Database Strategist, (iii) Customer Relationship Lead, and (iv) Invoice Contact. If the Project requires, then additional roles could include:  (i) Aligned System of Work Consultant; (ii) Financial/Cash Forecasting Consultant; (iii) Sales Coach/Consultant, (iv) Telephony Supervisor, or (v) Executive Advisor/Coach or other mutually agreed to roles defined in MOU.  Contractor will provide a replacement appointee if, for any reason, such appointee is no longer able to act in his or her respective capacity.  The same person may be designated for more than one position so long as such person is able to provide the time necessary to complete the tasks of all positions designated.  Contractor will cause the appointees to devote such time to the Project as may be reasonably required to complete the Project in a timely way, assuming that the Customer fulfills its responsibilities.

6.2        To Be Appointed by Customer.  Within five (5) days after commencement of the Term, Customer agrees to appoint in writing, and continuously maintain, the following persons (the “Customer Representatives”) to interact with Contractor in the administration of the Project and the services performed in connection therewith:  (i) Executive Sponsor, (ii) Management Sponsor, (iii) Sales and Marketing Team Leader, (iv) Application Specialist Point Person, (v) Client/Industry Subject Matter Expert, (vi) Sales Team Point Person and Sales Team, and (vii) Invoice Contact.  Contractor will work with the Customer Representatives in the implementation of the Project.  Contractor shall be entitled to rely upon any directions, oral or written, of the Customer Representatives.  The duties of the Customer Representatives are described in the attachedExhibit B.  Customer agrees to cause each of the Customer Representatives to devote such time and attention to the Project as shall be required to make the Project successful, and, in addition, as reasonably requested by Contractor.  In addition, Customer will provide the services of sales team members, application specialists, client/industry subject matter experts, and telemarketing personnel, who will devote such time as may be reasonably requested by Contractor and agreed to by Customer to implement the actions required in connection with the Project.

7.

COMMITMENTS OF CUSTOMER

7.1       Collaborative Business Development Approach

Customer shall adhere, and cause its employees, agents, representatives, associates, Customer Representatives, and any other individuals or entities assisting Customer with the Project to adhere, to the time frames and deadlines set forth in the Contractor Documents.  Contractor shall not be responsible for any delay caused by Customer’s failure to comply with the time frames and deadlines or other terms and conditions of the Contractor Documents.  In addition, Customer shall, and shall cause its employees, agents, representatives, associates, Customer Representatives, and any other individuals or entities assisting Customer with the Project to complete, and complete timely, the following business development components relating to the Project:  (i) definition of the sales process, (ii) continuous improvement (e.g., making process and behavioral improvements based upon actual feedback), (iii) opportunity and financial status (iv) sales and consulting follow through, and (v) all other actions required of Customer in the MOU or this Agreement.  

7.2

 Permitted Uses.   Customer shall adhere, and cause its employees, agents, representatives, associates, contractors, and any other individuals or entities assisting Customer with the Project to adhere to all applicable federal, state, foreign and local statutes and regulations, including, but not limited to the CAN-SPAM Act and the National Do Not Call Registry.   Contractor or its partners reserves the right, but assumes no responsibility or obligation to monitor your conduct and use of the Service. Contractor or its partners may, at its own discretion, take action to remediate any problems caused by violations (or alleged violations) of the acceptable uses, including but not limited to suspension to access (in part or in whole) the Service and/or suspension or termination of the Agreement.

7.3

  Anti-SPAM Policy.  Customer represents and warrants to Contractor that it will use the Service in full compliance with the CAN-SPAM act including but not limited to:

7.3.1

  Customer will not use false or misleading e-mail header information. The Contractor Service does not allow the manipulation of any e-mail header information by the Customer. The Customer agrees not to use e-mail relays or other agents in conjunction with the Service to deploy or send e-mail in any way that generates false or misleading e-mail header information.

7.3.2

  Customer will not use deceptive subject lines. This means that any subject line attached to any electronic mail sent in conjunction with use of the Service must clearly relate to the content of the electronic mail. Contractor policy and federal law prohibit the use of deceptive or misleading subject lines.

7.3.3

  Customer will use and apply the Opt-Out mechanism of the Service to any electronic mail sent through the Contractor or Contractor’s partners mail servers to provide a clear, easy to use, and fully functional unsubscribe method for recipient electronic mail.

7.3.4

  Customer will provide a valid physical postal address within the content of the message using the mechanism of the Service. The CAN-SPAM law requires that the “sender of the e-mail” (i.e. the person or company identified in the From label) to display a physical postal address within the content of the message. The Contractor Service provides this function automatically in the standard footer on all e-mail composed and sent through the Service. Contractor requires that ALL Customers of the Service provide a valid and accurate postal address for this purpose.

7.4

  Personal Information.  In using the features of the Service, Customer may provide Personal Information (such as name, contact information, or other registration information) to Contractor. Contractor may use this information and any technical information about Customer’s use of this web site to tailor its presentations to Customer, facilitate Customer’s navigation through the Site and to improve Service, or communicate separately with the Customer. All such Personal Information is subject to the Contractor’s Privacy Policy.

7.5

  Software Use.  This Agreement terms are an agreement for use of the Service made available through the Site, and Customer is not granted a license to any software by these Terms. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service or any software, documentation, or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software; or copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Software; use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels, or build a competitive product or service.

7.6

  Feedback.  In the course of navigating the Site and using the Service, Customer may provide Contractor with feedback, including but not limited to suggestions, observations, errors, problems, and issues regarding the Service and Site (collectively “Feedback”). You hereby grant to Contractor a worldwide, irrevocable, perpetual, royalty-free, transferable, and sub-licensable, non-exclusive right to use, copy, modify, distribute, display, perform, create derivative works from, and otherwise exploit all such Feedback.

7.7

   Export Limits.  Customer represents, warrants and covenants that: (i) you will not use the Service in any manner for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (ii) it will not knowingly provide access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations.

7.8

   Customer Access.  Customer must obtain, at your own expense, the appropriate Internet connections and equipment needed to access and use the Service. Customer also must use reasonable security precautions in connection with your use of the Service.

8.

PRICE AND PAYMENT

8.1          In General.  The price and payment terms for the License and the Services described in Section 4 are listed in the MOU.  Customer is responsible for and must report and pay any applicable taxes related to the License and Contractor’s services and support under the Contractor Documents, except for taxes based on Contractor’s net income.

8.2         Standard Payment Terms.  Invoices will be payment due upon receipt, unless stated differently in the MOU.  At Contractor’s sole discretion, Contractor may place Customer on a net fifteen (15) day terms from the date of invoice if Customer makes all payments on time for a twelve (12) month period.  Contractor reserves the right to modify these terms for international business and/or special projects.  Payments on all invoices shall be in U.S. funds.

8.3        Late Payments.  A late payment bears interest at the rate of one and one-half percent (1 ½%) per month from 30 days after its due date.  Failure to make a payment by its due date shall constitute a material breach of this Agreement.  In the event of a past due payment, Contractor may (i) terminate this Agreement, and/or (ii) suspend Customer’s Use of the Software and/or the Site and/or Content as well as the performance of Contractor’s services and support under the Contractor Documents, and/or (iii) require return or destruction or non-use of Content, Documentation, Software, and Targeted Decision Maker Database; in addition to any other rights it may have, until the payment and the interest penalty imposed hereunder are paid in full.  In addition, Customer shall reimburse Contractor for all costs, fees, and expenses incurred by Contractor as a result of any problems in the processing of Customer’s payments, including, without limitation, fees associated with returned checks and overdrafts.  Customer expressly acknowledges that Customer has priced the Service subject to this Agreement based on its perpetual rights to Content, Documentation, Software, and Targeted Decision Maker Database.

8.4        Additional Out-of-Pocket Costs.  In addition to the fees set forth in Section 8.1, Customer will pay, or reimburse Contractor for, any living costs of Contractor personnel incurred on Customer-related travel that exceeds the agreed to number of included trips defined in the MOU.  Contractor and Customer will on a best efforts basis plan a budget for these additional out-of-pocket costs.  These costs include, without limitation, travel expenses, lodging, meals, and local transportation.  Customer will pay these invoices net thirty (30) days of the invoice date.  Any item over Two Hundred Dollars ($200.00) must be pre-approved by Customer in writing.  (Confirmed fax or e-mail correspondence will satisfy this writing requirement.)

8.5        Other Costs.  Customer shall bear all costs and expenses associated with Customer’s rights and obligations under the Contractor Documents, including, without limitation, all Customer’s equipment, telephone lines, hardware, and other materials necessary for Use of the Software and the Site.

8.6        Prices.  Prices are subject to change prior to execution of the MOU by Contractor.  Contractor also shall have the right at any time to separately invoice Customer for any such taxes and charges that Contractor may be called upon to pay and Customer shall be obligated to reimburse Contractor for all such amounts.

8.7        Price Adjustments.  The initial price for Service is listed in MOU.  The prices listed in the MOU shall be firm for Service delivered by Contractor during the Term.  Contractor may increase the prices for the Service no more than once in any calendar year by giving notice to Customer at least 90 days prior to the effective date of such change.  Notwithstanding the foregoing, upon 90 days written notice to the Customer, Contractor may increase the purchase price for any good to account for (i) a significant increase in the cost of any provided service; (ii) any other significant increase in the cost to deliver Project under this agreement; or (iii) for a measurable change agreed between Customer and Contractor in any year of the agreement.

9.

LIMITATION OF LIABILITY

9.1        AGGREGATE LIABILITY.  CUSTOMER AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY ON THE PART OF CONTRACTOR FOR BREACH OF THECONTRACTOR DOCUMENTS OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THE CONTRACTOR DOCUMENTS (INCLUDING, WITHOUT LIMITATION, THE SOFTWARE, THE SITE, OR THE CONTENT) SHALL BE LIMITED TO CUSTOMER’S ACTUAL DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID TO AND RECEIVED BY CONTRACTOR IN RESPECT OF THE FEES DESCRIBED IN SECTION 8 WITHIN THE LAST TWO (2) MONTHS FROM DATE OF NOTIFICATION.  

9.2        CONSEQUENTIAL DAMAGES.  UNDER NO CIRCUMSTANCES SHALL CONTRACTORBE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM, CORPORATION, OR OTHER ENTITY FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, MULTIPLE, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL OR BUSINESS PROFITS, LOSS OF REVENUE, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE OR MALFUNCTION, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT IN NO EVENT WILL DIRECTORS, OFFICERS, EMPLOYEES OR SHAREHOLDERS OF CONTRACTOR BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, ORDINARY, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, CONSEQUENTIAL OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THE CONTRACTOR DOCUMENTS OR THE SOFTWARE, THE SITE, OR THE CONTENT.

9.3        DISCLAIMER OF WARRANTIES. ALL SOFTWARE, DATA, THE SITE, CONTENT AND SERVICES PROVIDED ARE SOLD “AS IS.”  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CONTRACTOR MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED) WITH RESPECT TO THE SOFTWARE, THE SITE, OR THE CONTENT AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONTRACTOR DOES NOT REPRESENT OR WARRANT THAT:  (I) THE SOFTWARE OR THE SITE WILL OPERATE UNINTERRUPTED OR ERROR-FREE, (II) THE USE OF THE SOFTWARE OR THE SITE WILL BE SECURE, (III) THE SOFTWARE, THE SITE, ORTHE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (IV) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

9.4    TIME FOR COMMENCEMENT OF ACTION.  NO ACTION AGAINST CONTRACTOR, REGARDLESS OF FORM (INCLUDING NEGLIGENCE), ARISING OUT OF ANY CLAIMED BREACH OF THE CONTRACTOR DOCUMENTS OR TRANSACTIONS UNDER THE CONTRACTOR DOCUMENTS OR IN ANY OTHER WAY RELATED TO THE CONTRACTORDOCUMENTS MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS FIRST ARISEN.

9.5   Indemnification. Customer agrees to indemnify and hold Contractor, its agents and employees, harmless from and against any and all claims or causes of action brought against Contractor and from any and all damages, losses, expenses, attorney’s fees, costs and liabilities sustained by Contractor arising out of any claimed defect in the goods and services supplied by Contractor and any claimed improper manufacture, design, design drawings, specifications, materials or repairs provided by Contractor.  Customer’s obligation under this paragraph shall include the obligation to indemnify and hold Contractor harmless for Contractor’s negligence, whether active, passive or concurrent, in the performance of its duties and obligations.

9.6   Delay And Failure To Deliver.  Contractor shall not be liable in any respect for failure to ship or for delay in providing Service where such failure or delay shall have been due in whole or in part to shortage or curtailment of material, labor, transportation or utility services, or to any labor difficulty at Contractor or those of its partners, or to any cause beyond Contractor’s control including, but not limited, to acts of God, fires, explosions, natural disasters, embargoes, or wars.

10.

INTELLECTUAL PROPERTY

10.1  Ownership.  Subject to the provisions of Section 10.3 below, Customer agrees thatContractor, or in some cases its partners, shall have and retain all right, title, and interest, including all Intellectual Property Rights, in and to the Software, the Site, the Content, and the Documentation, including any related derivative intellectual property created as part of Proposal.

10.1.1

  Contractor shall retain all IP Rights arising out of the work done in connection with this Agreement (the “Work Product”).  To the extent that the operation of law would result in Customer possessing an IP Right in the Work Product, an improvement to the Work Product, or a derivative work of the Work Product, Customer hereby assigns all such IP Rights to Contractor.  Customer agrees to cooperate with Contractor to execute whatever assignment documents are reasonably necessary for Contractor to establish sole title over all such IP Rights vis a vis Customer.

10.1.2

  Except for the right of Customer to use the Service purchased from ContractorContractortransfers no license to Customer to use any IP Right owned or controlled by Contractor to make, have made, use or sell any good provided by Contractor under this agreement.

10.1.3

   Customer shall indemnify and hold Contractor, its agents and employees, harmless from (i) any claim of infringement or misappropriation of an IP Right or (ii) any claim of unfair trade or of unfair competition, arising out of the Service sold pursuant to this Agreement.

10.2        Infringement.  If the Site or Content infringes a third party’s U.S. Intellectual Property rights, Contractor shall:  (i) procure for Customer the right to continue using the Site or Content, or (ii) replace or modify the Site or Content so that it is non-infringing but maintains substantially the same functionality.  If neither one of these options is reasonably practical forContractorContractor may terminate Customer’s right to use the Site and Content and refund to Customer all licensee fees paid for the Software, prorated on a straight-line basis over the Term.

10.3        Targeted Decision Maker Database.  

        10.3.1        Subject to the License granted hereunder, Customer agrees that Contractor owns, and will continue to own, all right, title, and interest, including all Intellectual Property Rights, in and to the Targeted Decision Maker Database.  Raw contact data can be supplied by Customer, purchased by Contractor, or from other sources. Once Contractor provides contact record cleansing, contact record segmentation, or sends first tracked online communication via Software, then the contact record is enhanced by Contractor and becomes part of Targeted Decision Maker Database. The Contractor enhanced contact record can include contact information (Base Info) with contact demographics information, including specifically the following:  company names, contact names, titles, addresses, phone numbers, facsimile numbers, e-mail addresses, company revenues, industry, number of employees, number of plants, and certain other summary characteristics or its industry characteristics specifically (e.g., whether contact is “visionary” and contact special interests).  Contractor may use the Targeted Decision Maker Database, containing the enhanced contact records, as updated, without restrictions, so long as Contractor does not disclose the Specific Customer Data (as defined below) to any other person or entity; provided, however, that Contractor may share pertinent Specific Customer Data with Contractor’s business associates on a need-to-know basis.  Such associates shall protect the Specific Customer Data at the same level required of Contractor hereunder.  “Specific Customer Data,” as used herein, means customer-specific data comprised of the following for targeted contacts and accounts identified in the MOU:  (i) market segmentation survey data, (ii) campaign survey data (e.g., MarketSurvey TM, Interest Accelerator TM, and Awareness Accelerator TM), (iii) event data, (iv) Customer confidential data, (v) competitive data supplied by Customer, (vi) any contact related Customer’s sales data supplied by Customer, or (vii) any contact confidential data supplied by Customer except Base Info.  

        10.3.2        Upon the expiration of this Agreement, and provided that Customer has fully paid the amounts set forth in Section 8 of this Agreement and is not in default under the Contractor Documents:  (i) Customer shall have a perpetual license to use the Specific Customer Data, subject to the terms and conditions of the Contractor Documents, and (ii) Contractor will provide Customer with one (1) copy of the Specific Customer Data.  Customer agrees not to distribute, in full or in part, the Specific Customer Data without Contractor’s prior written consent.

10.3.3        Customer agrees to not Use Target Decision Maker Database, in whole or part, until it has fully paid the amounts set forth in Section 8 of this Agreement and is not in default under the Contractor Documents or if Section 14.15 is in use.

11.

CONFIDENTIALITY

11.1        Non-Disclosure.  Customer agrees to treat as confidential all Confidential Information of Market Results, not to use such Confidential Information except as set forth in the Market Results Documents (which includes, without limitation, not using Market Results’ Confidential Information to create alternative or competitive software or systems), and not to disclose such Confidential Information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth in this Agreement.  Without limiting the generality of the foregoing, Customer shall use at least the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by Market Results under this Agreement, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice.  Notwithstanding the foregoing, Customer shall have no liability to Market Results with regard to any Confidential Information which:  (i) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of Customer, (ii) was known to the Customer, without restriction, at the time of receipt as shown by the files of Customer in existence at the time of receipt, (iii) is disclosed with the prior written approval of Market Results; (iv) was independently developed by Customer without any use of the Confidential Information; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Customer shall provide prompt notice thereof to enable Market Results to seek a protective order to otherwise prevent such disclosure.  Upon request by Market Results, the Customer will promptly return or destroy the original and all copies of the Confidential Information received.  Notwithstanding the provisions of Paragraph 14.6, and to the extent the Parties previously entered into Market Results’ Mutual Non-Disclosure Agreement (“NDA”), then NDA terms shall control over the terms of this Master Customer Agreement in the event of a conflict between the NDA and the Master Customer Agreement.

11.2        Protective Measures.  Customer agrees to use all reasonable efforts, including, without limitation, the execution of proprietary non-disclosure agreements by members of the Customer Group and any other third party having access to the Confidential Information to ensure their compliance with the provisions of this Section 11.

11.3        Irreparable Harm.  Customer acknowledges that any disclosure to third parties of the Confidential Information, or use of the Confidential Information in violation of the provisions of this Section 11, may cause immediate and irreparable harm to Market Results.

12.

NON-SOLICIATION

12.1    For a period of two years after termination of this agreement, each party agrees (a) not to, directly or indirectly, or in concert with others, encourage or seek to influence any officer, employee, or independent contractor of the other party to quit or leave employment with the other party, and (b) not to employ or otherwise engage (as employee, consultant, independent contractor or otherwise) any officer, employee, or independent contractor of the other party, and (c) divert or attempt to divert any business or customer of the other party or its affiliates.

13.        TERMINATION

13.1        Termination.  This Agreement may be terminated by either party if there is a material breach of any provision of this Agreement by the other party which continues unremedied for a period of thirty (30) days [ten (10) days for the payment of money] after non-breaching party has given written notice of its intent to terminate together with details of the material breach.  Upon termination or expiration of this Agreement, the License shall terminate and, except as provided in this Agreement, Contractor shall have no further obligations to Customer.  In addition, Customer shall not be granted a refund of any prepaid charges for the remaining Term, and Customer shall promptly pay all amounts due and owing to Contractor pursuant to Section 8 or as may otherwise be due and owing to Contractor.  

13.2        Survival.  All provisions of this Agreement regarding ownership, intellectual property, limitation of liability, confidentiality, non-solicitation, and indemnification shall survive any termination or expiration of this Agreement.

13.3        Setoff.   Customer may not setoff or deduct from sums owed to Contractor those sums owed or allegedly owed by Contractor to Customer unless Contractor consents in writing.  Customer may not setoff or deducts amounts owed or allegedly owed to Customer byContractor’s affiliates or others who are not parties to the agreement unless Contractor consents in writing.

13.4        Insolvency.  This Agreement shall terminate automatically if Customer becomes insolvent or bankrupt, if a receiver is appointed for Customer, or if Customer is reorganized for the benefit of creditors.  The termination or expiration of this Agreement shall not relieve Customer of its obligation to pay Contractor all Applicable Fees that shall have accrued up to and including the date of termination or expiration.  Termination of this Agreement by Contractor shall in no way prejudice the rights of Contractor to seek other remedies for the failure of Customer.  Any delay in exercising the rights of termination shall in no way prejudice the right of Contractor to terminate for any subsequent or continuing failure of Customer.

14.        GENERAL

14.1        Audit Right. During normal business hours and at any time during which the Software, Content, or Site is being used, Contractor or its authorized representative shall have the right, upon reasonable advance notice, to audit and inspect Customer’s use of the Software, Content, or Site, in order to verify compliance with the terms and conditions of the Contractor Documents.  In addition, if the risk/reward option has been selected, then Contractor and/or its agents will have the right to review Customer’s books and records, on reasonable notice, to verify revenue received.  

14.2        Master Agreement.  The Contractor Documents are intended to be the master agreement between the parties concerning the subject matter thereof.  In the future, Customer may request Contractor to provide additional or different services by means of delivering purchase orders or by other MOUs mutually agreed to by the parties.  The approval and acceptance of such MOU shall be subject to Contractor’s sole discretion.  Unless otherwise specifically stated in a future MOU signed by Customer and Contractor, all terms and conditions of this Agreement shall be automatically incorporated by reference into the MOU.

14.3        Export Control.  Customer represents and warrants that Customer is a United States resident.  Customer may not remove or export from the United States or allow the export or re-export of the Site and Service, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

14.4        Benefits and Binding Effect.  The Contractor Documents shall be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns.

14.5        Entire Agreement; Amendments.  The Contractor Documents constitute the entire agreement between the parties regarding its subject matter and supersede all prior proposals, agreements, and understandings between the parties, whether oral or written.  Notwithstanding anything to the contrary herein, the MOU terms shall control over the terms of this Agreement in the event of a conflict between the MOU and this Agreement.  The parties expressly agree that Contractor may unilaterally amend:  (i) all terms and conditions relating to the Use of the Software or the Site, and (ii) such provisions of the Contractor Documents, which by their terms, specifically permit unilateral modification.  Contractor shall post such modifications to Customer on Site or via email.  Except as otherwise provided herein, unless made in writing and executed by duly authorized representatives of both parties to the Contractor Documents, no amendments or modifications to the Contractor Documents shall be binding.

14.6        Construction. Each provision of the Contractor Documents shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the ContractorDocuments shall be prohibited or invalid, such provision shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate the remainder of such provision or the remaining provisions of the Contractor Documents in that or other jurisdictions which provisions shall continue in full force and effect.

14.7        Inconsistencies.  In the event of inconsistencies in the Contractor Documents, the terms and conditions of this Agreement and the MOU shall control.

14.8        Captions.  The captions contained in the Contractor Documents are for convenience of reference only and shall not be construed as part of the Contractor Documents.

14.9        Waiver. Neither party to the Contractor Documents shall, by mere lapse of time without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any provision of the Contractor Documents.  Failure by either party to enforce any term of the Contractor Documents shall not be deemed a waiver of future enforcement of that or any other term in the Contractor Documents.

14.10        Compliance With Law. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under the Contractor Documents.

14.11        Notice. Any notices, demands and other communications under the ContractorDocuments shall be in writing and shall be delivered in person, mailed by first-class mail, postage prepaid (registered or certified to the extent available, and airmail if overseas), couriered overnight, or sent by fax to the party to receive the notice at the address as may be designated in writing by the receiving party, or by email with an email acknowledgement.  All such notices shall be effective upon receipt.

14.12        Governmental Departments. In the event Customer is a governmental entity, only those departments or agencies listed in this Agreement shall have the right to use the License.  Governmental departments or agencies not listed must have a separate agreement and pay additional fees.

14.13        No Assignment. Customer may not, without Contractor’s prior written consent, which may be withheld in Contractor’s sole discretion, assign or transfer the Contractor Documents or any obligation incurred or right granted thereunder, including without limitation by change of effective voting control of Customer, merger, reorganization, consolidation, or sale of all or substantially all of Customer’s assets.  Any attempt to do so in contravention of this Section shall be void and of no force and effect.

14.14        Governing Law. The Contractor Documents shall be governed by and interpreted and construed in accordance with the laws of the State of Michigan (exclusive of its choice of law rules), and the U.S. copyright, trademark, and patent laws.  The United Nations Convention on the International Sale of Goods is expressly excluded.  

14.15        Dispute Resolution.

14.15.1      Mediation Initial Dispute Resolution. If a dispute arises out of or relates to the Contractor Documents, or the breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation using the non-profit Oakland Mediation Center in Michigan for this additional dispute resolution purpose starting within 15 business days of identified dispute sent in writing to the other party. This can include phone and web meetings for remote attendees. The fees for mediation shall be shared by the parties to the dispute.

 14.15.2      Additional Dispute Resolution. Any dispute arising out of or relating to the Contracted Documents, or the breach thereof, that cannot be resolved by mediation within 30 days shall be finally resolved by single arbitrator mutually agreed to with intellectual property, sales, marketing, and business law experience to be selected during 30 day mediation period. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. If parties can’t agree on arbitrator during 30 day mediation period, then mediator will flip coin during mediation period via http://www.virtualcointoss.com/ with at least one witness and one assignment person to blind heads/tail selection, on final non-conflicted experienced submitted arbitrator from each party. Or the parties can select another randomize virtual coin flip web program or selection approach, if they can mutually agree. Parties agree to use American Arbitration Association (AAA) Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language. The award of the arbitrator shall be accompanied by a statement of the reasons upon which the award is based. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings, if possible injunction needed or immediate irreparable harm may be possible. Parties agree that AAA administration and fees are waived. For arbitration proceedings the over 50% prevailing party shall recoup actual costs, including without limitation attorneys, arbitration, and court fees.

14.15.3      Customer specifically waives any and all objections to venue in such courts.

14.16        Further Assurances. The parties shall with reasonable diligence do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purpose of the Contractor Documents and carry out their provisions.

Customer’s execution of the MOU, which incorporates this Agreement by reference, shall constitute Customer’s agreement with and acceptance of all of the terms and conditions of this Agreement.

EXHIBIT A  TO  TERMS OF SERVICE AGREEMENT

BASE PROJECT SPECIFICATION ASSUMPTIONS

  1. Stationery for deliverables requiring Customer’s standard corporate stationery will be supplied by the Customer at no additional charge to Contractor.

  2. Contractor will mail based on U.S. Postage First Class, and this cost is paid by Customer when the direct mail piece.

  3. Brochures or flyers are based on two-color/two-sided printing on 20# Gloss paper.

  4. Cover letters are laser printed and use Customer stationery with a single digitized signature.

  5. Business Reply Envelopes (BRE) when needed will be supplied by Customer

  6. Faxback/BRE response handling is included and managed by Customer.

  7. Two attempts will be made to acquire contacts on best-efforts basis

  8. There is only one version of the item/deliverable unless specified in the MOU.

  9. Any corporate design guidelines will be provided in writing or soft copy within two weeks of signing the MOU.

  10. Contractor can use Customer’s name as a statement of fact in customer lists for marketing materials.

  11. All costs are based on U.S. domestic campaign contacts unless specified in MOU.

  12. Immediate Need tele-qualification is done on a best effort basis with up to 4 attempts to complete.

  13. The Customer will complete a template supplied by Contractor in Excel of the Seed List (internal people to include in mailings) and the sales rep and sales management assignment list within 2 weeks of receiving the template.

  14. Opportunity Alerts, QuickStatus, Qualified Opportunity Reports and Monthly Opportunity Reports are delivered electronically via the Internet/eMail.

  15. Customer’s opportunity team will complete current weekly or daily QuickStatus (which will include Customer Defined Sales Methodology) information on line.  This will enable tracking with the goal of driving up close rates and enabling management progress and pipeline reporting.

  16. Joint meetings are to be scheduled at mutually convenient times.

  17. Creative and printing on deliverables are not included unless specified in the MOU.

  18. Any additional authoring or editing beyond the process defined in the Agreement will be billed on an hourly basis at $150/hour or current rates if changed.  Additional authoring will be pre-approved in writing, fax or e-mail by the Customer

  19. The database build is limited to specific company locations (no corporate hierarchy included) unless specified in MOU.

  20. The job position specific topics used in cover letters assume that all industry segments within the database strategy have the same operating concerns.

  21.         Google Adwords, Facebook advertising, other advertising and promotional fees are not included unless specified in the MOU.

EXHIBIT B TO TERMS OF SERVICE AGREEMENT

DUTIES OF THE CUSTOMER REPRESENTATIVES

Executive Sponsor

  • Sets segment goals and objectives
  • Receives a quarterly formal presentation of progress, milestones
  • Shares market management, strategic direction
  • Trained to use appropriate summary Contractor sales pipeline and campaign status reports

Management Sponsor

  • Builds the team (combination of sales and marketing)
  • Identifies key sales, market, and content resources
  • Uses database market management data to assist in next step decisions
  • Receives monthly checkpoint
  • Assists Contractor in gaining access to key people and input
  • Receives monthly results reporting and campaign summaries
  • Trained to use appropriate Contractor software modules

Sales and Marketing Team Members

  • Proactively supports effective defined consultative sales methodology
  • Works with Contractor to jointly manage execution, content and results
  • Optimizes use of key sales, market and content resources
  • Reviews all materials (point person needed)
  • Defines lead criteria
  • Receives qualified leads
  • Responsible for timely lead status
  • Closes pre-qualified leads
  • Trained to use appropriate Contractor software modules

Customer/Industry Subject Matter Expert(s)

  • Works with Sales Team Point Person and Sales Team
  • Very knowledgeable about the target market, problems and solutions
  • Handles initial Customer contact with qualified opportunities
  • Responsible for timely sales team resource allocation and integration
  • Trained to use appropriate Contractor software modules

Invoice Contact

  • Receives and approves invoices from Contractor
  • Arranges for payment in accordance with the MOU