Master Services Agreement: IntentBase

This Master Services Agreement (the “Agreement”) is entered into as of the date of the last signature on the related Order Form, which incorporates this Agreement (the “Effective Date”) by and between True Influence LLC, a Delaware limited liability company having its registered office at 8000 Towers Crescent Dr., 13th Floor, Vienna, VA 22182 (“True Influence LLC”) and the Customer, whose name and address are identified in the related Order Form adopting this Agreement.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions. In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:

“Affiliates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Data Portal” means any online file storage system hosted by or for True Influence through which True Influence may deliver the Intent Data to Customer as specified in an Order Form.

“Intent Data” means intent data and associated content recommendation, audience segmentation, and data analytics services described in one or more Order Forms (the Data Portal and Intent Data are sometimes referred to collectively as, the “Services”).

“Order Forms” means the ordering documents from Customer’s purchases from True Influence LLC that are executed hereunder by the parties from time to time. Order Forms shall be deemed to have incorporated this Agreement therein.

“Subscription” means the right to receive Intent Data during the Subscription Term in accordance with each Order Form.

“Subscription Effective Date” means the subscription effective date specified on each Order Form.

“Users” means individuals who are authorized by Customer to access the Intent Data and Data Portal (as applicable), in each case who has been authorized by Customer (or by True Influence LLC, at Customer’s request).

2.   Provision of the Services. True Influence LLC shall make the Intent Data available to Customer and its Users (including through the Data Portal if applicable) pursuant to this Agreement and all Order Forms during the Subscription Term. Customer agrees that its purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by True Influence LLC with respect to future functionality or features. True Influence LLC hereby grants to Customer on the terms and subject to the conditions set forth herein, a worldwide, non-exclusive, non-transferable, non-sublicensable right and license to use the Intent Data for Customer’s business purposes, solely during the applicable Subscription Term. For clarity, the Intent Data is licensed as set forth above and not sold.  True Influence LLC reserves all rights, title, and interest in and to the Intent Data and Data Portal, including all related intellectual property rights.  Customer shall only use the Intent Data solely for its own marketing and analytics purposes, and may not sublicense, resell, or create any other product or service from, the Intent Data. Customer shall be responsible for the actions of any Users and each User’s compliance with the obligations under this Agreement.

2.1   Customer Affiliates. The Subscription to the Intent Data is granted solely to the party stated in the Order Form and shall not be shared with Customer’s Affiliates or third parties. Customer Affiliates and or divisions may purchase additional Subscriptions to the Intent Data subject to the terms and conditions of this Agreement by executing separate Order Forms hereunder.

3. Customer’s Conduct and Use Guidelines.

3.1   Access Guidelines. The Customer shall use the Services for its internal business purposes as contemplated by the Agreement and shall not: (i) willfully tamper with the security of the Services or tamper with other customer accounts of True Influence LLC, (ii) access data on the Services not intended for the Customer, (iii) log into a server or account on the Services that the Customer is not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any Services or to breach the security or authentication measures without proper authorization; (v) willfully render any part of the Services unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Intent Data or make the Intent Data available to a third party other than as contemplated in this Agreement; (vii) use the Intent Data for timesharing or service bureau purposes, for the benefit of a third party, or otherwise to provide a service that competes with True Influence LLC or any of its services; or (viii) combine with other data, modify, reverse engineer or create derivative works based on, the Intent Data.  Customer shall not remove any intellectual property notices included in any Intent Data and, in any event, True Influence LLC shall at all times be credited as the source of the Intent Data within Customer’s organization (e.g., “Source: The Intent Data is provided by True Influence LLC and used by [Customer] under limited license.”).

3.2   Tagging and Audit. True Influence LLC will monitor Customer usage of the Intent Data, including by tagging the contact records with a unique identifier and “seeding” the records. During the term of this Agreement and for a period of two (2) years thereafter, Customer will maintain books and records of Customer that relate to transactions and use of the Intent Data and its outputs and True Influence LLC shall have the right, at its own expense, to audit the books and records of Customer that relate to transactions and use of the Intent Data and its outputs for the purpose of verifying the amounts paid to True Influence LLC hereunder and compliance with the terms and conditions of this Agreement.  True Influence LLC shall have the right, upon 60 days prior notice, to examine such records during regular business hours.  True Influence LLC will bear the cost of the audit, unless a deficiency is found that exceeds the cost of the audit, in which case, Customer will pay the audit cost. In any event, Customer must pay for the deficiency.

3.3   Communications Responsibilities. The Customer agrees that it will not use the Intent Data in a manner that (i) infringes the intellectual property rights of a third party or is otherwise unlawful or (ii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation.  Customer agrees to take standard and reasonable steps to safeguard and protect the Intent Data hereunder while it is in Customer’s possession, including the employment of such reasonable technological and physical security measures against unauthorized access or use that Customer applies to its own proprietary or confidential information. Customer shall promptly notify True Influence LLC of any known unauthorized access to the Intent Data, and shall provide to True Influence LLC assistance in investigating any security breach and take such other remedies as necessary to minimize the damage caused by any unauthorized access to Intent Data.

3.4   Breaches to Section 3. In the event of a material breach under this Section 3, and in addition to any other rights and remedies under the Agreement and in law, True Influence LLC reserves the right to immediately suspend access to the Services until such breach, in True Influence LLC’s opinion, is no longer a threat to the Services or other customer accounts.

4. Confidentiality

4.1   Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.

4.2   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.

4.3   Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).

4.4   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.

5. Fees and Taxes.

5.1   Fees. The Customer shall pay to True Influence LLC all of the fees specified in the Order Forms. Except as otherwise provided in the Order Forms, all fees are quoted in United States currency; fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and fees are non-refundable.  True Influence LLC reserves the right to increase fees under any Order Form prior to each renewal.

5.2   Invoicing and Payment. Fees for the Intent Data will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date.

5.3   Overdue Payments. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.

5.4   Suspension of Service. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), True Influence LLC reserves the right to suspend the Services without liability to True Influence LLC, until such account is paid in full.

5.5   Taxes. The Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than True Influence LLC’s income taxes. If True Influence LLC pays any such taxes on the Customer’s behalf, the Customer agrees to reimburse True Influence LLC for such payment unless the Customer provides True Influence LLC with a valid exemption certificate authorized by the appropriate taxing authority.

5.6   Expenses. If True Influence LLC is required to incur any additional costs or expenses in providing Intent Data to the Customer, True Influence LLC shall first obtain written approval from Customer.

6.  Proprietary Rights. The Services and all intellectual property rights therein and all intellectual property rights relating to the provision of the Services and the Intent Data are owned or licensed by True Influence LLC. Except for the Subscription granted hereunder during the term of this Agreement, nothing in this Agreement gives the Customer any right, title or interest to the Services.

7. Term and Termination.

7.1   Term of the Agreement. This Agreement commences on the Effective Date and continues until the Subscription to the Intent Data granted in accordance with this Agreement has expired or been terminated.  Either party may terminate this Agreement for convenience during any period in which there is no then current Subscription.

7.2   Term of Intent Data Subscription. Subscription to the Intent Data commences on the Subscription Effective Date and continues for the term specified in the Order Form (the “Subscription Term”). The Subscription to the Intent Data shall automatically renew for successive terms equal to the original Subscription Term at True Influence LLC’s then current fees in effect at the time of the renewal, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term.

7.3   Termination. This Agreement may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately in the event of a material breach of Section 3 hereof.  Upon expiration or termination of this Agreement, Customer agrees to discontinue use and to return all Intent Data (or if True Influence LLC so requests, Customer will destroy such data), and provide written certification of such destruction to the satisfaction of True Influence LLC.

7.4   Outstanding Fees. Termination shall not relieve Customer of the obligation to pay True Influence LLC the fees agreed in the Order Form unless Customer terminates the Agreement for cause.

7.5   Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 3.2 and Sections 4 to 11.

8.   Warranties and Disclaimers. Each party represents and warrants that it has the legal power to enter into this Agreement. Except as expressly provided herein, TRUE INFLUENCE LLC DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. True Influence LLC does not warrant that the Intent Data will meet the Customer’s requirements or that access to the Services will be uninterrupted or error-free. Further, True Influence LLC does not warrant that all errors in the Intent Data can or will be corrected.

9.   Limitation of Liability. NEITHER PARTY, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES PAID BY THE CUSTOMER FOR THE INTENT DATA DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

9.1   Exclusion of Consequential and Related Damages. THE PARTIES AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.

9.2   The limitations of liability under Sections 9.1 and 9.2 shall not apply to any indemnification provided by either party hereunder.

9.3   Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer.

9.4   No action against either party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.

10. Mutual Indemnification.

10.1   True Influence LLC Indemnification. True Influence LLC shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the Intent Data, as delivered to Customer hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if True Influence LLC reasonably believes that the Customer’s use of any portion of the Intent Data is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then True Influence LLC may, at its expense: (i) procure for the Customer the right to continue using the Intent Data; (ii) replace the same with other data that is not subject to an action of infringement; or (iii) modify the data so that there is no longer any infringement or breach, provided that such modification does not adversely affect the Intent Data. True Influence LLC shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation, modification or use of the Intent Data by Customer in a manner not consistent with True Influence LLC’s instructions.

10.2   Customer Indemnification. The Customer agrees to indemnify and hold True Influence LLC harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against True Influence LLC by a third party arising from or relating to Customer’s use of the Intent Data in violation of this Agreement.

10.3   Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.

11. General Provisions.

11.1   Entire Agreement This Agreement, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms including those now or hereafter appended hereto, the terms of the Order Form shall govern.

11.2   Marketing. Neither party may issue press releases to this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.

11.3   Relationship of Customer and True Influence LLC. The parties are independent contractors. This Agreement does not create a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.

11.4   Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.

11.5   Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by the terms of this Agreement.

11.6   Solicitation. During any then current Subscription Term and for a period of one (1) year following the termination or expiration of this Agreement (the “Restricted Period”), neither party shall employ, offer employment to or solicit the employment of or otherwise entice away from the employment of the other party any individual employee or independent contractor employed or engaged by such other party during the Restricted Period without the prior written consent of such other party.

11.7   Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Virginia, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. This Agreement must be construed as if both parties jointly wrote it. If True Influence LLC determines it must initiate enforcement of this agreement by mediation, arbitration or litigation, it shall receive all related reasonable attorney fees and costs, including personnel costs. The non-termination rights and obligations of the parties hereunder shall survive termination of this Agreement or related Order Forms.

11.8   Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to True Influence LLC shall be addressed to the CEO. Notices to the Customer shall be addressed to Customer’s signatory unless otherwise designated below.

11.9   Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.

11.10   Facsimile Transmission/Counterparts. This Agreement (including any Order Form) may be executed and delivered by facsimile or email, and upon receipt such transmission shall be deemed delivery of an original. This Agreement (including any Order Form) may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the day and year first above written.

11.11   Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.

11.12   Procedure. Whether or not hereunder, all claims between the parties shall be exclusively meditated, arbitrated and litigated before mediators, arbitrators or judges sitting in Alexandria or Fairfax, Virginia.  The parties consent to personal jurisdiction before such tribunals, including the American Arbitration Association.  If mediation, arbitration or litigation is commenced in any other venue, then the mediator, arbitrator or judge shall dismiss it. The parties waive any right to jury trial.

11.13    Service. This agreement and the business conducted hereunder are hereby deemed to constitute or include transactions and services occurring within Virginia so as to authorize service through the Secretary of the Commonwealth of Virginia. If a party’s principal place of business is outside of Virginia, that service of process may be made upon it within the time required by law, by e-mail, or facsimile, with follow up delivery of the pleadings made by nationally recognized overnight courier service to its address.  Service shall be deemed made and complete at the time of actual delivery by overnight mail or at the time of attempted delivery in the event that delivery is refused or the party has relocated.