ONLINE TERMS FOR SUPPLY OF MARKETO CAMPAIGN SUPPORT SERVICES   

 

LEADOUS INC. (LEADOUS) IS A COMPANY REGISTERED IN THE STATE OF MINNESOTA.  LEADOUS OPERATES THE WEBSITE LEADOUS.COM AND ITS MAIN ADDRESS IS IN SECTION 8 BELOW.  HOW TO GIVE LEADOUS FORMAL NOTICE OF ANY MATTER UNDER THIS CONTRACT IS SET OUT IN SECTION 8.

 

Leadous may, at any time, update, revise, supplement, and otherwise modify these Terms and impose new or additional rules, policies, terms, or conditions on the future performance of Services.  Leadous will communicate changes to these Terms by posting the new version of the Terms on its website at www.leadous.com/supportmsa or as required by applicable law, and such updated Terms will be immediately effective.

 

1. MARKETO CAMPAIGN SUPPORT SERVICES

 

  A. Our Contract With You.  These terms and conditions (Terms) apply to the order by you and supply of Services by Leadous to you (Contract).  They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.  The Contract is the entire agreement between you and Leadous related to its subject matter.  You acknowledge that you have not relied on any statement, promise or representation or warranty that is not set out in the Contract.  You should print a copy of these Terms or save them to your computer for future reference.

 

B. Placing an Order and Its Acceptance.  Please follow the onscreen prompts to place an order.  You may only submit an order using the method set out on the Leadous website.  Each order is an offer by you to buy the Marketo campaign support services specified in the order (Services) subject to these Terms. Please check the order carefully before confirming it.  You are responsible for ensuring that your order is complete and accurate.  Our acceptance of your order takes place when Leadous send an email to you to accept it (Order Confirmation), at which point and on which date (Commencement Date) the Contract between you and Leadous will come into existence.  The Contract will relate only to those Services in the Order Confirmation.  If Leadous is unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your order.

 

C. Leadous Services.  All Services will be provided with reasonable diligence in accordance with the defined and agreed upon objectives stated in the order.  LEADOUS will use personnel suitably skilled, experienced and qualified to perform the Services.  Leadous reserves the right to choose or replace the personnel it uses to provide the Services.  Leadous will use all reasonable endeavors to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.

 

2. CHARGES

 

A. Fees.  In consideration of Leadous providing the Services you must pay our fees.  The fees are calculated on a time and materials basis in accordance with our daily fee rates.  You must pay all amounts due under the Contract in full without any set-off, counterclaim, deduction, or withholding.

 

B. Taxes.  You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on amounts payable by you.  In no event shall you pay or be responsible for any taxes imposed on, or with respect to, Leadous’ income, revenues, gross receipts, personnel or real or personal property or other assets.

 

C. Billing and Payment.  Leadous will invoice you upon completion of the Services.  Such fees and expenses are payable by you to Leadous within 30 days of the date of such invoice.  If you fail to pay Leadous, you will be liable for costs and expenses of collection.  If you fail to pay when due, Leadous may immediately cease all efforts taken on behalf of you and all other Services without liability to you.

 

D. Change in Scope.  If you wish to change the scope of the Services after Leadous accepts your order, and we agree to such change, Leadous will modify the fees accordingly.

 

3. YOUR OBLIGATIONS

 

A. Your Responsibilities.  It is your responsibility to ensure that: (i) the terms of your order are complete and accurate; (ii) you co-operate with Leadous in all matters relating to the Services; (iii) you provide Leadous with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and (iv) you comply with all applicable laws.

 

B. Default. If Leadous’ ability to perform the Services is prevented or delayed by any failure by you to fulfill any obligation listed in Section 3A above, then (i) Leadous will be entitled to suspect performance of the Services until you remedy your default; and (ii) Leadous will not be responsible for an costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and (iii) it will be your responsibility to reimburse Leadous on written demand for any costs or losses we sustain or incur arising directly or indirectly from your default.

 

C. Survival.  The obligations of you and Leadous in Sections 4 to 8 of these Terms shall survive and continue after performance of the Services.

 

4. CONFIDENTIALITY AND NON-DISCLOSURE

 

“Confidential Information” means information of a party treated as confidential or secret by the party whether orally, in writing, by demonstration, electronically or otherwise.  You and Leadous each agree not to use Confidential Information of the other party other than in support of the receiving party’s obligations under this Contract unless the disclosing party has expressly granted the right to use such Confidential Information.  You and Leadous each agree to protect Confidential Information in its possession against disclosure to third parties using the same degree of care as the receiving party uses to protect its own proprietary and confidential information, but at least reasonable care. The restrictions on use and disclosure of Confidential Information do not apply to information already lawfully known to or independently developed by the receiving party, is or becomes generally known to the public without fault of the receiving party, is lawfully obtained from any third party without any obligation of confidentiality, or is required to be disclosed by law. In the event a party is legally obligated to disclose Confidential Information of the other party, to the extent legally permissible, it shall give the disclosing party notice of the required disclosure. These protections continue for a period of five years after termination of the Contract.

 

5. USE AND OWNERSHIP

 

A. Ownership.  If paid in full, all intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) will be owned by Leadous; provided however, if paid in full, you solely and exclusively own materials prepared by Leadous for you as identified in the order.

 

B.  Promotional Use.  Leadous reserves the right to visually reproduce, display and demonstrate work and its functions as part of our portfolio. If the work or function is owned by Client, Leadous will obtain prior written consent before reproducing, displaying, or demonstrating that work.

 

6. LIABILITY; INDEMNIFICATION; RISK ALLOCATION

 

A. Liability.  NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY, IN CONTRACT OR TORT, EVEN IF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL SEEK SUCH DAMAGES. OUTSIDE INDEMNIFICATION OBLIGATIONS DEFINED BELOW, THE PARTIES AGGREGATE LIABILITY FOR DAMAGES TO THE OTHER PARTY, WHETHER UNDER THE CONTRACT OR THESE TERMS, TORT, STATUTE OR REGULATION, ARE LIMITED TO THE ACTUAL DIRECT MONEY DAMAGES NOT TO EXCEED THE FEES PAID BY YOU TO LEADOUS FOR THE SERVICES.

 

B. Indemnification.  Each party agrees to indemnify the other party and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless against all damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorneys’ fees and costs of defense) and defend the other party against actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from (i) infringement of the intellectual property rights of a third-party, and (ii) death, disability, or the destruction of tangible personal property caused by the gross negligence or willful misconduct of the indemnifying party.

 

C. Exclusive Remedies.  Any claim related to these Terms, the Contract or the Services shall be brought within one (1) year after the first date of performance or breach which in whole or in part gives rise to the claim.  The remedies in this MSA are exclusive and in lieu of all other remedies available at law or in equity for any act performed in connection with the Contract or these Terms, or for any breach of the Contract or these Terms, whether brought under a theory of tort liability, contract liability, or any other theory recognized at law.

 

7. WARRANTIES; DISCLAIMER

 

A. Leadous Warranties.  Leadous warrants the Services substantially comply with any specifications in the Order Confirmation, and the Services will be performed in a commercially reasonable manner; if the Services fail to comply with the foregoing warranties, as the exclusive remedy for breach of such warranties, Leadous shall correct the non-conformances one time at no additional cost.

 

B. Authority.  Each party represents it has all rights, power and authority to enter into the Contract and perform its obligations, and the consummation of the transactions contemplated do not breach the terms of any third-party contract.

 

C. Disclaimer of Warranties. EXCEPT FOR THESE EXPRESS WARRANTIES, LEADOUS DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

 

8. GENERAL

 

A. Notices.  All notices must be delivered in writing to Leadous (4590 Scott Trail, Suite 102, Eagan MN 55123) or you at the notice address in the order.

 

B. No Partnership or Joint Venture.  Nothing in the Contract creates any relationship of employer/employee, partnership, agency, joint venture, or otherwise between the parties, nor does the Contract confer any express or implied right, power, or authority to enter into any commitment, express or implied, or to incur any obligation or liability on behalf of any other party.  The Contract does not create any relationship with the other party’s employees.

 

C. Non-waiver.  Failure to enforce terms of the Contract will not be a waiver of the right to enforce such term in the future.

 

D. Binding Effect.  The Contract is binding upon and inures to the benefit of the parties and their successors and assigns.

 

E. Governing Law and Consent to Jurisdiction and Forum.  The Contract is governed by the laws of Minnesota. Any proceeding arising under the Contract or these Terms shall be tried and litigated exclusively in the courts located in Hennepin County, Minnesota.

 

F. Severability.  If a provision of this MSA is unenforceable, such provision will be removed and this MSA remains valid.

 

G. Entire Agreement.  The Contract is the entire agreement of the parties for the Services, superseding other agreements.

 

H. Force Majeure.  Leadous is not liable for any failure, inability or delay in performing its obligations under the Contract due to war, strike, fire, explosion, sabotage, accident, casualty, government law or regulation or any other cause beyond its reasonable control.


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