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IGNITIONONE SCORE-POWERED(SM) TRIAL TERMS AND CONDITIONS

  1. Service. For the thirty-day period commencing on the date that the Tag is deployed on the Client’s website (“Site”) (“Trial Period”), IgnitionOne will provide its LiveMarketer(sm) engagement scoring and real-time visualization product (“Service”) through a tag (“Tag”) on the Site. LiveMarketer allows the visualization of the real-time behavior of each visitor on the Site and performs real-time scoring of each such visitor.  During the Trial Period, no more than five categories and one conversion activity will be mapped and tracked by LiveMarketer.  At the end of the Trial Period, IgnitionOne agrees to deliver an analysis of Client’s users’ engagement on the Site and will showcase the Score-Powered(sm) capability of the data collected through the Tag on the Site.  Should Client wish to continue with the Service after the Trial Period, Client and IgnitionOne will enter into a new agreement.  Client will provide IgnitionOne with details of the appropriate conversion events and category mapping in order for IgnitionOne to configure LiveMarketer.  Promptly following the date the Client signed up for the Service (“Effective Date”), the Client will use best reasonable commercial efforts to deploy the Tag on all the pages of the Site.
  1. Service Fees. There shall be no fees for the Service during the Term. If the Tag is not removed from the Site in accordance with section 8, IgnitionOne may charge a monthly fee to Client based on the number of monthly visitors to the Site. Client will pay such fee within 30 days from the invoice date.
  1. Limited Licenses. During the Trial Period, IgnitionOne will provide through the Tag on the Site access to the IgnitionOne software (“Software”) solely in accordance with this Agreement. “Services” includes the Software.  Client agrees that IgnitionOne owns all right, title and interest in and to Software and all related intellectual and proprietary rights and that the Software is IgnitionOne’s Confidential Information. Client agrees not to reverse engineer or decompile the Software. Client grants to IgnitionOne a non-exclusive, worldwide license to use, reproduce, distribute, modify for technical purposes, publicly display and publicly perform the content provided by or approved by use for Client  (“Client Content”) and use and reproduce Client’s marks ( “Client Marks”) solely for the purpose of performing its obligations under this Agreement. Except for the limited license granted herein, nothing herein shall be construed as IgnitionOne granting to Client any right, title or interest in or to the Software or any patent, trade secret or other intellectual property rights of IgnitionOne.
  1. Confidentiality. Each party shall treat as proprietary and shall maintain in strict confidence all information of the other party which is, or should be reasonably understood to be confidential or proprietary to the disclosing party (including information relating to technology, products, Services, Software and the terms and existence of this Agreement) and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use any such Confidential Information other than in furtherance of its obligations hereunder. Confidential Information shall not include information which receiving party can demonstrate by written records: (a) is known to receiving party at the time of disclosure by disclosing party, (b) has become publicly known through no wrongful act of receiving party, (c) has rightfully been received by receiving party from a third party who is authorized to make such disclosure, (d) was independently developed by employees of receiving party who have not had access to the Confidential Information of disclosing party, (e) is disclosed generally to third parties by disclosing party without restrictions similar to those contained in this Agreement, or (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that receiving party shall provide prompt notice of such court order or requirement to disclosing party to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Upon termination of this Agreement, the receiving party shall destroy all copies of disclosing party’s Confidential Information and all tangible embodiments thereof and provide written certification thereof.
  1. Privacy. Each party shall (i) adhere to applicable privacy law and regulation, and (ii) post a privacy policy and other applicable disclosures on it websites (including on the use of cookies) that are in accordance with all applicable laws, rules and regulations. Both parties shall ensure that their actual privacy practices comply with their respective privacy policies. Client shall ensure that it obtains all legally required permissions from Site visitors in connection with placing cookies and the use of data as contemplated by this Agreement. Client agrees not to transmit to IgnitionOne, its information providers, licensors, licensees, consultants, contractors, agents, attorneys or employees, and IgnitionOne shall not solicit or collect, any personally identifiable information (“PII”) of the visitors or customers to the Sites unless required by law or court order, or otherwise agreed in writing and signed by an authorized representative of IgnitionOne.
  1. WarrantiesOther than as expressly set forth herein, IgnitionOne does not make any express or implied warranties, conditions, or representations to Client with respect to the Services or any other deliverables provided hereunder or otherwise regarding this Agreement, whether oral or written, express, implied or statutory. Without limiting the foregoing, any implied warranty or condition of merchantability, the implied warranty against infringement, and the implied warranty or condition of fitness for a particular purpose are expressly excluded and disclaimed.

 

  1. Liability. Except to the extent prohibited by law, IgnitionOne shall not be liable for any indirect, special, incidental or consequential damages or loss (including damages for loss of business, loss of profits, or the like) whether based on breach of contract, tort (including negligence), product liability or otherwise, even if IgnitionOne or its representatives have been advised of the possibility of such damages. Except to the extent prohibited by law, IgnitionOne’s total liability to Client under any and all circumstances shall not exceed One Hundred Dollars ($100.00). Client agrees to defend, indemnify and hold IgnitionOne harmless against any and all actions, suits, proceedings, claims, judgments, damages, costs and expenses, including reasonable attorney’s fees, and other liabilities arising from or related to the Client Content, the Client Marks or Client’s breach of Section 5.
  1. Term and Termination. This Agreement shall commence on the Effective Date and shall continue until IgnitionOne delivers to Client the analysis of Client’s users engagement on the Site (“Term”).  IgnitionOne shall have the right to terminate this Agreement for its convenience by providing written notice to Client Upon the earlier of the end of the Trial Period or the termination of this Agreement, Client will immediately delete the Tag from the Site. The provisions that are intended to survive shall so survive after termination.
  1. Miscellaneous. This Agreement represents the entire agreement between the parties with respect to its subject matter. In the event that any provision hereof shall be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. Client may not assign this Agreement without the prior written approval of IgnitionOne. This Agreement is governed by the laws of New York without regard to any conflict of law provisions thereof. The parties agree to submit to the exclusive jurisdiction and venue of the appropriate state and federal courts located in New York, New York with respect to all matters arising out of or relating to this Agreement. This Agreement may not be modified or amended except by a writing signed by the parties. The failure of either party to this Agreement to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement.