Master Service Agreement

Subject to the terms of this Agreement, AdButler, its affiliates and subsidiaries, will use commercially reasonable efforts to provide you access to the Services. As part of the registration process, you will identify an administrative user name and password for your AdButler account.  We reserve the right to refuse registration of, or cancel passwords it deems inappropriate.

Subject to the terms hereof, we will provide you with commercially reasonable technical support services in accordance with our standards of practice (Exhibit A).

You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

You represent, covenants, and warrants that you will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Although Company has no obligation to monitor your use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”) and any information that is in writing, including electronic transmissions, and that is clearly marked as proprietary or confidential, or any information disclosed orally if identified as confidential or proprietary at the time of disclosure, or is reasonably understood to be confidential or proprietary. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

You shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to you as part of the Services.  We shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this by notifying us at marketing@adbutler.com

You will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  If your use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), You shall be billed for such usage and you agree to pay the additional fees in the manner provided herein.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). If you believe that we have billed you incorrectly, you must contact us no later than 120 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to our customer support department.

You may choose to bill through an invoice, in which case, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable.  Full payment for invoices issued in any given month must be received by us thirty (30) days after receipt of the invoice. We shall not suspend any part of the Services where (a) you are reasonably disputing any amount due to Company; or (b) any unpaid but undisputed amount due to Company is less than ninety (90) business days in arrears.

In the event that the Customer fails to make any payment due under this Agreementwithin the stipulated time frame, AdButler reserves the right to charge interest on theoverdue amount at 1.5% per month rate or the highest rate permitted by applicable law, whichever is lower, from the due date until the date of actual payment. This clause forms an integral part of the Agreement between AdButler and the Customer, and any breach of this clause shall be considered a material breach of the Agreement, potentially giving rise to termination rights and/or other remedies under the law.

You shall be responsible for sales or use taxes or shall provide us with an appropriate exemption certificate. You shall be responsible for all other taxes, assessments, permits and fees, however designated, which are levied upon this Agreement or the Products, except for taxes based upon vendors income, gross receipts or other taxes where Federal, State or Local jurisdiction intends the tax to be the responsibility of the vendor.

In the event that taxes are required to be withheld by any government on payments required hereunder, you may deduct such taxes from the amount owed and pay such taxes to the appropriate tax authority (the “Deduction Amount”). You will not be required to repay the Deduction Amount to Company, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall automatically renew for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless you request termination at least thirty (30) days prior to the end of the then-current term or Company requests termination at least thirty (30) days prior to the end of the then-current term.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement. You will pay in full for the Services up to and including the last day on which the Services are provided.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

Suspension for Non-Payment

We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

This is an agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the AdButler Content, the Subscription Service, the Consulting Services, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the AdButler Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.

We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.

We shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

AdButler represents and warrants that:

• it has full rights, title and interest in and to the Services and documentation, and the right to convey the same to you, free and clear of any encumbrances;
• it has the right, power and authority to execute and deliver the Agreement and to perform thereunder; and
• the Services and documentation, and any and all parts related thereto (i.e. the source code and object code), do not and shall not infringe or violate any patent, copyright, trademark, trade secret or other intellectual property right of any third party.

Performance Warranty. We warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services.

In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period.  If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.

Disclaimer of Warranties.

No Indirect Damages.

We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.

Limitation of Liability.

Third Party Products.

Agreement to Liability Limit.

• By Us.  We will indemnify, defend, and hold harmless you, your directors, officers, employees, agents, and Affiliates (each an “Customer Indemnitee”) from and against any and all third party liabilities, claims, damages and losses, including all reasonable attorneys’ fees, costs and expenses (hereafter “Claims”), arising out of or connected with any Claim that the Services or the Proprietary Materials infringe, misappropriate, or violate any third party’s intellectual property rights, except for any such infringement, misappropriation or violation that (i) arises out of any act or omission by Customer, or any employee, agent, or Affiliate of Customer in violation of the terms and conditions of this Agreement or any Order Form, or (ii) would not be an infringement, violation or misappropriation but for the use by Customer, or an employee, agent, or Affiliate of Customer of the Services or Proprietary Material with or in any technology (including any software, hardware, firmware, system or network) or service not provided by us.
• By you.  You will indemnify, defend, and hold harmless AdButler and its directors, officers, employees, agents, and Affiliates (each a “Company Indemnitee”) from and against any and all third party Claims arising out of or connected with any infringement, violation or misappropriation of any third party’s intellectual property rights that would not have occurred or existed but for the use by Customer, or in any technology (including any software, hardware, firmware, system or network) or service not provided by us.
• Indemnification Procedure. Each party shall promptly notify the other party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to this Section. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense (except that the Indemnifying Party may not settle any Claim unless it unconditionally releases the Indemnified Party of all liability). The Indemnitor shall immediately take control of the defense and investigation of such Claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

Upon request by you made before or within sixty (60) days after the effective date of termination, Company will, for a additional charge of not more than $1,000, make available to you a complete and secure (i.e. encrypted and appropriately authenticated) download file of Customer Data including all schema and transformation definitions and/or delimited text files with schema definitions along with attachments in their native format.

Company may not, directly or indirectly, (i) sublicense, resell, rent lease, distribute, or otherwise transfer rights to or usage of any Customer Intellectual Property or Customer Data for any purpose including timesharing or service bureau purposes; (ii) modify, copy or make derivative works based on the Customer Intellectual Property or Customer Data; or (iii) disassemble, reverse engineer, or decompile any of the Customer Technology. Vendor may access Customer’s User accounts, including without limitation Customer Data, solely to support the Service or to respond to technical problems.

The Customer shall ensure that any data or information that it provides, uploads or otherwise makes available to the Company through the use of the SaaS service (the "Customer Data") shall comply with all applicable laws, regulations and industry standards. The Customer represents and warrants that it has obtained all necessary rights, consents and permissions to provide the Customer Data to the Company and that the Customer Data does not infringe any intellectual property rights or other rights of any third party. The Company shall not be liable for any damages resulting from the Customer's failure to comply with the foregoing. The Customer shall promptly notify the Company if it becomes aware of any non-compliance of the Customer Data with any laws, regulations, or industry standards and shall cooperate with the Company in taking appropriate action to address such non-compliance.

Responsibility for Advertiser Content

While using AdButler Self Serve ("the Platform"), the Publisher acknowledges and agrees that it is solely responsible for any and all content, materials, or information submitted or uploaded by the advertisers to the Platform ("Advertiser Content").

Representation and Warranties

The Publisher represents and warrants that:

• The Advertiser Content will not violate any laws, regulations, or third-party rights, including but not limited to copyright, trademark, privacy, or other personal or proprietary rights;
• The Publisher has obtained all necessary rights, licenses, and permissions to allow the Advertiser Content to be used on the Platform and to grant the rights provided in this Agreement;
• The Advertiser Content will not contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
• The Advertiser Content will not promote any illegal activity or discriminate based on race, sex, religion, nationality, disability, sexual orientation, or age.

Indemnification

The Publisher shall indemnify, defend, and hold harmless AdButler, its affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, damages, obligations, losses, liabilities, costs, or debt, including but not limited to attorney's fees, arising from:

• Any breach by the Publisher of the warranties and representations set forth in Section 2 above;
• Any violation by the Advertiser Content of any third-party right, including without limitation any copyright, property, or privacy right;
• Any claim that the Advertiser Content caused damage to a third party.

Notification of Breach

In the event that the Publisher becomes aware of any issue that may breach the representations and warranties made herein, the Publisher agrees to promptly notify AdButler and take all necessary corrective actions.

Removal of Advertiser Content

Removal of Advertiser Content: AdButler reserves the right to review, monitor, and remove any Advertiser Content at its sole discretion, without notice, for any reason or no reason.

During the term of this Agreement and any related Order form, Company shall not materially and detrimentally reduce or eliminate key functionality in a module without providing similar or better replacement functionality at no additional cost.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent.  We may transfer and assign any of its rights and obligations under this Agreement without consent.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between an Order Form and this Agreement, the Order Form will prevail. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect whatsoever.

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personallydelivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

This Master Services Agreement and Terms and Conditions are the complete understanding between the parties and replace any prior oral or written communications.  The Agreement shall not be effective unless duly signed by AdButler and you.

You are contracting with Sparklit Networks, Inc. and this Agreement is governed by the laws of the province of British Columbia, Canada.

Service Level Terms

The Services shall be available 99.9%, measured monthly. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.  Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond our control will also be excluded from any such calculation. Your sole and exclusive remedy, and our entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, we will credit you 5% of Service fees for each period of sixty or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.  Downtime shall begin to accrue as soon as you (with notice to us) recognizes that downtime is taking place, and continues until the availability of the Services is restored.  In order to receive downtime credit, you must notify us in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.  We will only apply a credit to the month in which the incident occurred. Our blocking of data communications or other Service in accordance with our policies shall not be deemed to be a failure of us to provide adequate service levels under this Agreement.