Terms of Service - MARION Marketing

MARION

Standard Terms and Conditions of Service

Welcome to MARION! By signing an Agreement for any one or more MARION services, Customer agrees to these Terms and Conditions of Service (the “Terms and Conditions”). MARION may revise these Terms and Conditions at any time. Customer’s execution of any new Agreement after each such revision constitutes its agreement to these Terms and Conditions as revised.

A. Definitions
As used in these Terms and Conditions: (1) “Customer” means the person or entity specified in the Agreement; (2) “Services” means any one or more of the services specified in an Agreement; and (3) “Agreement” means a document, regardless of its title, that refers to these Terms and Conditions that: (a) specifies services to be provided to Customer under these Terms and Conditions; (b) provides scheduling and payment terms for the services specified; (c) states additional terms and conditions applicable to those services, if any; and (d) is executed by both parties.

B. MARION’s Obligations
MARION shall provide Customer with Services as specified in one or more Agreements under these Terms and Conditions

C. Customer’s Obligations
Customer agrees to provide, and where applicable to cause its third party vendors to provide, MARION with all information, access, and good faith cooperation required to enable MARION to provide contracted Services to Customer.

D. Fees & Payment
1. Fees. Customer shall pay MARION’s fees for Services invoiced in accordance with the Agreements specifying those Services and these Terms and Conditions. In addition, if MARION so requests, Customer shall pay any one or more increases in fees charged by vendors unaffiliated with MARION for products and services those vendors provide to Customer that are part of, or that Customer uses in conjunction with, the Services.

2. Expenses. Unless an Agreement otherwise provides, Customer shall reimburse MARION for its actual, reasonable, out-of-pocket travel and other expenses incurred by MARION in performing any one or more services.

3. Taxes. Customer shall either: (a) pay all taxes and surcharges on the Services, excluding taxes based on MARION’s income; or (b) provide MARION with proof of Customer’s tax-exempt status, in a form reasonably satisfactory to MARION.

4. Invoices; Payments; Payment Disputes.

a. Invoices. MARION may issue invoices for fees for services rendered, related expenses and taxes as these Terms and Conditions and each Agreement permit. Unless an Agreement otherwise provides, MARION may issue invoices to Customer for: (i) recurring monthly charges, in advance of MARION’s provision of Services; (ii) usage-based charges, at any time after those charges are incurred; (iii) phased projects, in appropriate increments as determined by MARION; (iv) for the full amount of any one or more unpaid charges for the purchase of vendor goods and services in connection with any one or more Services; and (v) each fee charged by any one or more vendors in response to each change to the Services requested by Customer.

b. Payment Timing. (i) Invoices. Customer shall either pay, or if warranted, dispute invoices pursuant to Section D.4.d of these Terms and Conditions, within thirty (30) days of the date of each such invoice; and (ii) Deposits. Whenever payments due under any one or more Agreements include deposits or other advance payments for third party goods and services to be used by Customer in conjunction with the Services, MARION may treat receipt of Customer’s payment of any one or more of those deposits or advance payments as a condition precedent to providing Services.

c. No Deductions. Customer shall pay all undisputed amounts set forth in MARION’s invoices issued under these Terms and Conditions in full, with no deductions or set-offs of any kind.

d. Payment Disputes. (i) Provided that it has a good faith basis for doing so, Customer may dispute any item on each invoice issued by MARION by sending a written communication to MARION: (a) specifying each item stated in the invoice that Customer believes may be incorrect; and (b) setting forth Customer’s good faith basis for its position that each item specified may be incorrect. If an invoice contains disputed and undisputed items, Customer shall pay each undisputed item set forth in that invoice in accordance with the terms of these Terms and Conditions.

e. Suspension of Services for Non-Payment. MARION may, in the event that Customer does not pay or dispute any invoice for Services rendered as these Terms and Conditions require, suspend the operation of any one or more Services by notifying Customer, in writing and at least five (5) days in advance, that: (a) one or more Services will be suspended for non-payment; and (b) the last date on which Services will be provided (each such notice, a “Notice of Suspension”). Once a Notice of Suspension has been issued to Customer, MARION may, without further notice, suspend any one or more Services in response to Customer’s failure to pay or dispute any invoice for those Services as these Terms and Conditions and that Notice of Suspension permit. MARION shall have no liability for any loss, damage, or disruption that may result from suspensions of Services pursuant to this provision.

f. Interest. MARION may, upon written notice, charge Customer interest, at the rate of twelve percent (12%) per annum or the highest interest rate permitted by law, on any one or more undisputed charges set forth in any invoice that remain unpaid more than thirty (30) days after the date on which that invoice was issued. Customer shall pay interest charged to it in accordance with these Terms and Conditions.

E. Term; Termination of Services
1. Term. These Terms and Conditions shall remain in effect while any one or more Agreements is in effect.

2. Termination by Customer. Customer may terminate any Agreement: (a) if MARION commits a Material Breach of that Agreement, and MARION fails to cure the breach within thirty (30) days of receipt of a written notice of breach from Customer; and (b) as that Agreement expressly permits.

3. Termination by MARION. MARION may terminate any one or more Agreements: (i) if Customer breaches any one or more material provisions of that Agreement (any such breach, a “Material Breach”) and Customer fails to cure that breach within thirty (30) days of receipt of a written notice of breach from MARION; or (ii) if Customer breaches a payment obligation under any one or more Agreements, and Customer fails to cure that breach within five (5) days of receipt of a written notice of breach from MARION. While Customer is in breach of a Agreement and during any associated cure period, Customer’s remedies under the service level agreements associated with that Agreement, if any, are suspended.

4. Effect of Termination or Expiration.

a. (i) Upon the termination or expiration of any Agreement, all rights of access to or use of the Services specified in that Agreement shall cease; and (ii) each party agrees that if no Agreement remains in effect, it will each cease holding itself out as having a contractual relationship with the other.

b. No termination of any Agreement shall excuse or release Customer from making any one or more payments that become due under the unexpired portion of the Term of that Agreement, including payments to third-party providers. If any Agreement is terminated prior to the expiration of its Term, for any reason other than MARION’s uncured material breach thereof, Customer shall pay: (i) any and all early termination fees and other payments imposed by other vendors, either on Customer or on MARION on Customer’s behalf, arising from the early termination; and (ii) 50% of the fees for Services in the unexpired portion of the Term of each terminated Agreement. Each party shall pay all undisputed amounts due to the other under each expired or terminated Agreement within thirty (30) days of the termination or expiration of each such Agreement. The parties acknowledge that no payment required by this section is or should be construed to be a penalty.

c. The parties shall, with respect to each terminated or expired Agreement: (i) cease any use of, and as the other party may then request, return or destroy any and all physical files, documents, or materials that embody or reflect the Confidential Information of the other party that may then be in its possession, custody or control concerning that Agreement; (ii) overwrite any and all Confidential Information of the other party that may then be in its possession, custody or control in electronic form concerning that Agreement; and (iii) if requested, provide the other party with a written statement, that it has complied with the foregoing obligations, signed by a duly authorized agent. Except as one or more surviving Agreements and Section E.4.e of these Terms and Conditions specify, after the expiration or termination of an Agreement, MARION shall have no obligations or responsibilities in connection with any Customer content, data, functionality, or domain name.

d. Any and all sections of these Terms and Conditions that by their terms operate after the termination or expiration of any one or more Agreements, including, Sections E through J inclusive and all subsections thereof, shall each survive the expiration or termination of any one or more Agreements.

e. Upon receipt of a Notice of Termination of any one or more Agreements, the parties shall work together to decommission the Services specified in each Agreement specified in that notice at the earliest reasonable time, and where applicable, to transition those Services to a new marketing vendor and/or hosting environment (any one or more such, the “Standard Transition Services”). MARION may provide Customer with additional transitional marketing services, as Customer may reasonably request in writing (any one or more such Services, “Special Transition Services”); and (b) Customer shall pay MARION for Special Transition Services at MARION’s then current standard rate for the services requested or on such other terms as the parties may then agree to in writing. Notwithstanding the foregoing, in the event that on the date on which MARION receives Notice of Termination, Customer has not paid any undisputed amount due under any one or more Agreements, inclusive of any early termination fees, MARION shall have the right to treat either payment of that amount or Customer’s execution of a written agreement reasonably acceptable to MARION for the payment of that amount as a condition precedent to any one or more of its obligations under this Section E.4.e. For the avoidance of doubt, Section E.4 of these Terms and Conditions shall apply with respect to fees for Special Transition Services.

F. Representations and Warranties; Disclaimer; Limitation of Liability
1. Each party represents that: (a) the person signing each Agreement on its behalf is its duly authorized agent, who is specifically authorized to enter into that Agreement on its behalf; (b) it is duly organized and validly existing under the laws of the state of its incorporation or formation; (c) it is permitted by applicable laws and regulations to enter into each Agreement; (d) it is, in all respects, able to perform fully under each Agreement; (e) it will perform under each Agreement in compliance with all applicable laws and regulations; and (f) upon execution and delivery, each Agreement shall constitute its valid and binding obligation, enforceable in accordance with its terms.

2. (a) MARION represents that in the course of providing Services, it will: (i) not knowingly infringe on any person’s or entity’s U.S. copyright, patent or trade secret in existence as of the Effective Date; and (ii) maintain the confidentiality and integrity of Customer data it stores or manages in the course of providing the Services in accordance with its Information Security Policy; and (b) Customer represents that it: (i) owns, has, or will obtain the legal right, as applicable, to copy, display, publish, sublicense, distribute, perform, process, or otherwise use with the Services each item of content, information, data including personal data, software and hardware that it utilizes, transfers, or makes available on, through, or otherwise using any one or more of the Services; and (ii) has or will obtain the legal right to use every service and facility that it accesses or uses in conjunction with the Services.

3. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, EACH OF THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MARION MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO ANY OF THE SERVICES. ALL SUCH WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE EACH HEREBY EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, MARION DOES NOT REPRESENT OR WARRANT THAT ANY OF THE SERVICES WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION, AS CUSTOMER EXPECTS, OR THAT ANY OF THE SERVICES WILL PERMIT CUSTOMER TO ACCOMPLISH ITS OBJECTIVES, COMPLY WITH ITS REGULATORY OBLIGATIONS, OR PREVENT OR CONTROL ANY RISK OF DEATH, PHYSICAL INJURY, LOSS OF OR DAMAGE TO PROPERTY OR DATA THAT MAY OTHERWISE BE ASSOCIATED WITH CUSTOMER’S BUSINESS.

4. (a) IN NO EVENT WILL MARION, ITS AFFILIATES, OR THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, VENDORS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER, ON ANY THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF MARION HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) IN NO EVENT WILL MARION, ITS AFFILIATES, OR THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, VENDORS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES, ON ANY THEORY, IN AN AMOUNT EXCEEDING $250,000.

(c) MARION will have no liability whatsoever for any damages, losses, or other expenses that Customer incurs that in any material respect, arises from or relates to any modification, or attempted use or modification of any one or more of the Services by, permitted by, or on behalf of, Customer that is not permitted by these Terms and Conditions.

G. Indemnification
1. MARION shall indemnify, hold harmless, and defend Customer from and against any and all third party claims that Customer’s use of any one or more of the Services as permitted under these Terms and Conditions infringes the claimant’s U.S. intellectual property rights, provided that the allegedly infringing Service has not been modified other than by MARION or combined with any product or service not authorized by MARION. MARION shall have no obligation to indemnify Customer with respect to any claim arising from Customer’s use of products, services, deliverables, or data provided by Customer or any one or more other vendors.

2. Customer shall indemnify, hold harmless, and defend MARION from and against any and all third party claims arising from or relating to: (a) each use of any one or more of the Services in a manner that is not permitted by these Terms and Conditions; (b) MARION’s reasonable compliance with each instruction given to it by Customer, including instructions to acquire equipment or to store or process data on Customer’s behalf; (c) MARION’s reasonable reliance on information or instructions provided by Customer; or (d) a breach of any one or more of Customer’s obligations, representations or warranties made in these Terms and Conditions or in any one or more Agreements.

3. Each party (the “Indemnified Party”) shall provide written notice, at the earliest reasonable time, of each claim for which it seeks indemnification (each such claim, an “Indemnified Claim”) from the other party (the “Indemnifying Party”). The Indemnifying Party may control and direct the investigation, preparation, defense and settlement of each Indemnified Claim. The Indemnified Party shall provide the Indemnifying Party with assistance in the defense or settlement of each Indemnified Claim, as it may reasonably request. The Indemnifying Party shall not agree to or enter into a settlement or compromise that imposes any liability or obligation on the Indemnified Party without the Indemnified Party’s prior written approval. The Indemnified Party may, at its own expense, retain counsel of its own choosing and participate in the defense of any one or more Indemnified Claims.

4. If any one or more of the Services becomes, or MARION has reason to believe that any one or more of the Services are reasonably likely to become, the subject of a claim for which Customer is entitled to indemnification under these Terms and Conditions or any Agreement, MARION may, at its option: (a) obtain a license or other agreement, at no cost to Customer, permitting Customer to continue its use of each of the Services involved in any one or more Indemnified Claims; (b) modify each such Service, maintaining comparable functionality and performance, so that it is not, or no longer appears to be, the subject of any one or more Indemnified Claims; (c) substitute other services for each of the Services that is or appears to be the subject of any one or more Indemnified Claims; or (d) terminate each Agreement calling for Services that are involved, or appear to be involved, in any one of more Indemnified Claims upon written notice, whereupon Customer shall immediately terminate all further use of the Services specified in that notice. In the event of termination pursuant to this provision, MARION shall credit Customer’s account in the amount of the pro rata portion of the fees actually paid to MARION to obtain use of the terminated Services in the unexpired portion of the then current term of the pertinent Agreements.

H. Confidential Information
1. As used herein, “Confidential Information” means oral, written and electronic information that is provided by either party (the “Disclosing Party”) to the other party (“Receiving Party”) under circumstances reasonably indicating that it is confidential or proprietary to the Disclosing Party, including these Terms and Conditions, all information concerning any one or more Services, or development, ideas, methodologies, calculations, analytical routines, personnel, plans, contracts, financial information and each print or electronic document relating to any one or more of the foregoing.

2. Confidential Information shall remain the sole property of the Disclosing Party. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing Party for any purpose other than: (a) to exercise its rights and discharge its obligations under these Terms and Conditions; or (b) as required by law. Except as required by law, the Receiving Party shall require each person to whom it discloses any of the Disclosing Party’s confidential information to enter into an appropriate confidentiality agreement to protect the Disclosing Party’s Confidential Information from any use or disclosure that is prohibited by these Terms and Conditions.

3. Confidential Information excludes information (a) available to the public other than by a breach of these Terms and Conditions or any other obligation of confidentiality; (b) lawfully received from a third party not in breach of an obligation of confidentiality; (c) independently developed by Receiving Party without access to Confidential Information; or (d) known to Receiving Party at the time of disclosure.

4. When permitted by law to do so, Receiving Party shall make reasonable efforts to give the Disclosing Party prior notice that the Receiving Party has received legal process or other request for the disclosure of the Disclosing Party’s Confidential Information sufficiently before the date of disclosure to permit the Disclosing Party to seek appropriate relief to limit or prevent such disclosure.

I. Miscellaneous
1. No Implied Waiver; Cumulative Rights & Remedies. No failure or delay to exercise any right, power, or privilege under these Terms and Conditions, Agreements, or other documents executed pursuant to these Terms and Conditions by either party shall operate as a waiver by that party, nor shall any individual or limited exercise of any such right, power, or privilege preclude any other or further exercise or that or any other right, power, or privilege. Except where a Agreement or these Terms and Conditions expressly state otherwise, all rights, powers, and privileges granted to either party in these Terms and Conditions shall be in addition to, and may be exercised without prejudice to, any other claims, rights, remedies, and powers to which that party may then be entitled under these Terms and Conditions or otherwise.

2. Modifications in Writing. No amendment, modification or waiver of any Agreement shall be effective unless it is in writing and signed by MARION and Customer. No amendment, modification or waiver of any provision of these Terms and Conditions shall be effective as to MARION unless it is in writing and signed by MARION’s duly authorized representative.

3. Limitation of Claims. No action, other than an action for breach of a party’s payment obligations may be brought under any Agreement or these Terms and Conditions more than one (1) year after the cause of action has accrued.

4. Non-Solicitation. During the Term and for one (1) year thereafter, except as one or more executed agreements between MARION and Customer otherwise permit, Customer shall not, without prior written consent of MARION, directly or indirectly, solicit the employment of any current or known former MARION employee or contractor within 1 year after the termination of that person’s employment or engagement by MARION. The parties agree that in the event this provision is violated, it will be difficult to determine the amount of the MARION’s monetary damages. Accordingly, Customer agrees that if it breaches this provision, it shall pay MARION, without prejudice to any other claims, rights or remedies, it may then have, liquidated damages in the amount of: (a) in the case of an employee or former employee, as applicable, 50% of the employee’s annual compensation on the date of the breach or 50% of the former employee’s annual compensation on the last day that that person was employed by MARION; or (b) or in the case of a contractor, the amount of fees billed to the non-breaching party by the contractor in the 6 months prior to date of the breach. MARION may invoice Customer for liquidated damages arising under this provision, if any, and Customer shall pay such invoices. The parties’ rights and obligations under this Section I.4 shall be subject to Section D.4 of these Terms and Conditions.

5. Force Majeure. Neither party shall be responsible for failure to perform any obligation under any one or more Agreements or these Terms and Conditions, other than its payment obligations, to the extent that its failure results from a cause beyond its reasonable control, including earthquakes, floods, fires, storms or other natural disasters, criminal activity, the failure of electrical service, internet access, or other utilities required to provide any one or more of the Services.

6. Governing Law. This Agreement, and any claim or dispute arising out of or related to this Agreement or its performance shall be governed by and construed under the laws of the State of Texas and the United States, without reference to conflict of laws principles.

7. Assignment. Unless an Agreement specifically provides otherwise, either party may assign any one or more of its rights or obligations under that Agreement with the written consent of the other party, which shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, assignments by either party to its affiliated entities may be made on written notice to the other party. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

8. Severability. If any provision of any Agreement or these Terms and Conditions is held to be invalid or unenforceable, that provision shall be modified to the minimum extent necessary to make it enforceable and no other provision of that Agreement or these Terms and Conditions shall be affected.

9. Counterparts; Delivery by Electronic Means. Any one or more Agreements may be executed in counterparts, each of which shall be deemed an original, but both of which shall constitute one and the same instrument. Delivery of any Agreement may be made by electronic means.

10. Notices. Any notice required or permitted by these Terms and Conditions or any Agreement may be given by any reasonable means, including email. Notices shall be sent to each party at its address as set forth in the most recent Agreement. Notices shall be deemed given and effective for all purposes by no later than 5 days after transmission.

Online Terms of Service ver. 1.0 03.01.17