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NETSERTIVE INC. MarketWiseTM TERMS AND CONDITIONS VERSION 4.0
(UPDATED October 2, 2018)

1. OVERVIEW.

Netsertive develops and implements specialized online marketing programs, by delivering localized co-branded digital marketing solutions to Client & Client’s retailers, and includes: program education, program configuration, program management, development of digital marketing creative assets, program deployment, and reporting (the “Services”). Client sells its products through retailers or distributors and desires to engage Netsertive to provide Services in connection with the operation of an integrated online marketing program for Client and its selected retailers or distributors pursuant to the terms and conditions set forth herein.

2. Billing.

Upon execution of this Agreement, Netsertive shall invoice the Monthly Subscription commencing on the effective date of the order and on the first of each month thereafter. Digital Marketing Funds are invoiced monthly in advance after launch on the first of the month. All invoices are in US Dollars and shall be payable within 30 days of receipt of an invoice from Netsertive. All payments shall be made in United States dollars. Past-due payments shall be subject to late payment charges equal to the lesser of one percent (1%) per month or the maximum rate allowed by law. In addition, if payment is past due, Netsertive may suspend provision of the Services (including all advertising) until Client’s account is current.

3. Term.

The term of this Agreement shall commence on the effective date of the order and shall continue for the term as specified on the order (the “Term”), unless sooner terminated pursuant to the terms hereof. Following the initial term, the Term of this Agreement shall automatically renew for successive one-year terms unless either party provides notice of its intent not to renew at least 30 days prior to the end of the then-current term. In addition, either party may terminate this Agreement upon written notice (i) if the other party materially breaches any of its obligations hereunder and fails to cure such breach within 30 days of notice thereof, or (ii) if the other party makes a general assignment for the benefit of creditors, is subject to a voluntary petition for bankruptcy (or an involuntary petition for bankruptcy that is not vacated within 60 days), has a receiver appointed or is otherwise declared insolvent.

4. Confidentiality and Proprietary Rights.

a. Each party agrees to maintain in confidence and use only as permitted in this Agreement all Confidential Information received from the other party. “Confidential Information” means all non-public business, technical, and financial information disclosed under this Agreement. The Confidential Information of Netsertive includes its technology, knowledge, expertise and algorithms used in connection with the Services. Netsertive shall have and retain exclusive ownership of all intellectual property rights in and to the Services and all associated technology, software, algorithms, methods, and techniques, including any intellectual property created in connection with the Services. Client shall not derive or attempt to derive the account configurations, source code, source files, or any component or structure of software provided by Netsertive by reverse engineering, disassembly, decompilation or other means and shall not provide access to the Service to any third party and shall not otherwise copy or use the design or “look and feel” of any software provided or used in connection with the Services. Client shall not remove or export from the United States or allow the export or re-export of any Services or any direct product thereof, including technical data in violation of any applicable laws or regulations. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; or (iii) is obtained by the receiving party from a third party who was not under any confidentiality obligations. Upon termination, each party shall promptly return or destroy all property in its possession belonging to the other party and return or destroy all materials containing Confidential Information.

b. In order to make continuous improvements, respond to market forces on behalf of Client, and provide data analysis services, notwithstanding anything to the contrary herein, Netsertive shall have the right to use aggregated datasets which may contain Client’s program data. Such data shall only be used as part of a larger collection of data and shall contain no Client attribution or identification. In addition, Client may identify dealers to receive certain Services from Netsertive (“Qualified Dealer”). To the extent Client authorizes Digital Marketing Funds to be used for the benefit of a Qualified Dealer, Client agrees that Netsertive shall have the right to provide information related to the Services provided to such Qualified Dealer hereunder to the Qualified Dealer.

5. Indemnity.

(a. Netsertive agrees to indemnify, defend and hold harmless Client and its affiliates against any losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) that arise out of or result from a third party claim relating to a material breach of this Agreement by Netsertive.
b. Client agrees to indemnify, defend and hold harmless Netsertive and its affiliates against any losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) that arise out of or result from a third party claim relating to a material breach of this Agreement by Client, use of content provided by or in collaboration with Client or any action taken by Netsertive at Client’s direction.

6. Limitation of Liability.

In no event shall either party hereto be liable for any consequential, special, exemplary, incidental or punitive damages or for any lost profits arising under, related to or in connection with this Agreement. In addition, except for each party’s obligations under Section 5 (Indemnity), neither party shall be liable to the other party hereunder for direct damages in excess of the total amount paid to Netsertive hereunder for the twelve month period prior to the date of any claim.

7. Representations and Warranties.

a. Each party hereby represents and warrants that (i) the execution and delivery of this Agreement by such party has been authorized by all requisite company action of such party, (ii) this Agreement is a valid and binding obligation of such party, enforceable in accordance with its terms, subject to laws of general applicability relating to bankruptcy, insolvency and the relief of debtors, and (iii) such party is under no contractual or other obligation or restriction that is inconsistent with its execution or performance of this Agreement.

b. Netsertive shall perform the Services in a professional, competent and workmanlike manner in accordance with standards of quality prevailing in the industry.

c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NETSERTIVE MAKES NO WARRANTIES, EXPRESS OR IMPLIED AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.

8. Force Majeure.

Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement caused by circumstances beyond such party’s reasonable control, including, without limitation, fire, flood, strike, civil, governmental or military authority, act of God, strikes, labor difficulties, delays or failures caused by Internet outages or failures or Internet Service Providers, and acts or policies of third parties such as Google, Inc., Microsoft Corporation and others.

9. Assignment.

Neither party shall assign any right or obligation under this Agreement without the prior written consent of the other party hereto; provided, that any assignment to an affiliate of a party or in connection with the sale of all or substantially all of the assets or equity of a party (including by merger, consolidation or similar transaction) shall not require prior written consent.

10. Use of Client Marks.

Client shall provide trademark authorizations for Netsertive with all required ad networks, and Client will submit such authorizations as may be required for Netsertive to perform the Services. Following the date hereof, the parties will collaborate on joint marketing activities and both parties will have the right to review and approve any deliverables before they are released. During the term of this Agreement, Client hereby grants Netsertive a nonexclusive license to use Client’s name, logo and brands as necessary to provide the Services hereunder, in marketing materials to retailers and distributors and in Netsertive’s marketing materials.

11. Survival of Obligations.

The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement, including, without limitation, Sections 4, 5 and 6.

12. Non-Solicit.

For two years from the commencement date of this Agreement, each party agrees not to either directly or through others, solicit or attempt to solicit any employee (not including administrative or information technology personnel), of the other party to terminate his, her or its employment with such party; provided, that the foregoing will not prohibit (i) employing any such person who contacts a party on his or her own initiative and without any solicitation by such party, or as a result of general advertisements for employment not specifically directed towards employees of the other party, or (ii) soliciting or employing any such person through any recruiting.

13. Severability.

If any one or more provisions of this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.

14. Remedies.

All remedies available for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of any other remedy.

15. Notices.

Any notice provided for or concerning this Agreement shall be in writing and deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth on the Order Form.

16. Relationship of Parties.

Netsertive is an independent contractor, and nothing in this Agreement shall be construed to create or imply a joint venture, partnership or principal/agent relationship between Client and Netsertive. Except as otherwise specifically set forth herein, neither party shall have any right, powers or authority to act or create any obligations, express or implied, on behalf of or for the other party hereto.

17. Waiver.

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. This Agreement shall inure to the benefit of and bind the successors and assigns of the respective parties.

18. Choice of Law; Jurisdiction.

This Agreement and all transactions under it shall be governed by the laws of the State of Delaware, without regard to any principles of conflict of laws.

19. Entire Agreement.

This Agreement shall constitute the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement shall not be modified or rescinded, except by a writing signed by Netsertive and Client. The provisions of this Agreement supersede all contemporaneous oral agreements and all prior oral and written communications and understandings of the parties with respect to the subject matter of this Agreement.