M-Analyst Terms and Conditions

The purpose of this Document is to set forth the terms and conditions under which Client shall use, (i) the M-Analyst websites (the “Sites”); (ii) any current or future service(s) provided by M-Analyst (the “Application Services”); and (iii) any associated information , products, software, and/or features made available to you by M-Analyst. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

"Application Service(s)" means the electronic data processing, storage and transmission services identified in the Service Order(s) agreed to in writing by the parties which may be executed and which shall be incorporated by reference into this Agreement. Service Orders shall be enumerated sequentially for identification as Service Order A.1, A.2, etc.

"M-Analyst Information" means information, including, information created or otherwise owned by M-Analyst or licensed by M-Analyst from Third Parties, related to the Application Services.

“M-Analyst License” means user license subscription for standard use of the Application Service.

"Documentation" means M-Analyst’s then current on-line help, guides, and manuals published by M-Analyst and made generally available by M-Analyst for the Application Service.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs intentionally designed to damage or allow unauthorized access to either Party’s computing environment or Client Data.

“Client Data" means all electronic data or information submitted by Client to the Application Service.

“Client” means an individual address for a business or company. For purposes of Company Website Overlay Product, the number of Clients shall be calculated by the greater of the number of individual addresses of Clients Locations or the number of unique website URL’s on which the Company Website Overlay Product is implemented.

"Service Order" means the ordering documents for Client’s purchases of Application Services from M-Analyst that are executed hereunder by the parties from time to time. Service Orders shall be deemed incorporated herein and shall be in the form substantially similar to Exhibit A.

"Third Party" means any entity other than M-Analyst or Client.

"Third-Party Applications" means online, Web-based applications and offline software products that are provided by Third Parties, interoperate with the Application Service, and are identified as Third-Party applications by M-Analyst.

"Users" means individuals who are authorized by Client to use the Application Service, for whom subscriptions to the Application Service have been purchased, and who have been supplied user identifications and passwords by Client (or by M-Analyst at Client's request). Users may include but are not limited to employees, consultants, contractors and agents of Client or its Affiliates. The current users are attached hereto as Exhibit B

"Work Product" means all information or materials developed or created by M-Analyst during the course of providing support, implementation, consulting, training or other professional services to Client in accordance with this Agreement. Work Product does not include any Client Data or Client Confidential Information.

2. Application Service.

2.1 Provision of Application Service. M-Analyst shall make the Application Service available to Client and its Users pursuant to this Agreement and all Service Orders during the subscription term. Client agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by M-Analyst with respect to future functionality or features.

2.2 Additional Clients. Subscriptions may be accessed by designated Users within a specific Client. Unless otherwise specified in the relevant Service Order, (i) the term of the additional Client subscriptions shall be coterminous with the expiration of the subscription term in effect at the time the additional Clients are added; and (ii) pricing for the additional Client subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional Clients are added.

2.3 Other Services. M-Analyst will provide professional services subject to availability, in accordance with M-Analyst’s professional services roles and rates effective as of the date of request by Client for such services.

3. Use of the Application Service.

3.1 M-Analyst Responsibilities. M-Analyst shall: (i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Users the Client Data; (ii) maintain the security and integrity of the Application Service and the Client Data; (iii) provide basic support to Client Contacts; and (iv) use commercially reasonable efforts to make the Application Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which M-Analyst shall give at least forty-eight (48) hours’ notice via the Application Service and which M-Analyst shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Pacific Time (“PT”) Friday to 3:00 a.m. PT on Monday); or (b) any unavailability caused by circumstances beyond M-Analyst's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving M-Analyst employees or contractors), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within M-Analyst's possession or reasonable control, and denial of service attacks.

3.2 Client Responsibilities. For all User accounts established by or for Client, Client is responsible for all activities by Users that occur in such Users’ accounts and for Users' compliance with this Agreement. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Service, and notify M-Analyst promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Application Service. Client represents and warrants that the Client Data does not infringe any intellectual property rights of any third party; (iv) comply with license restrictions set forth in 3.4.

3.3 Use Guidelines. Client shall use the Application Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Service available to any Third Party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates Third Party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Application Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Application Service or its related systems or networks.

4. Standard Support.

Client is responsible for first level support of its Users, which at a minimum shall include telephone support during Client's normal business hours. If Client's first level support cannot resolve an issue, then a Client Contact may contact M-Analyst support for second level. Managed Services and Statements of Work for professional services are not included in Standard Support.

5. Third-party providers

5.1 Acquisition of Third-Party Products and Services. M-Analyst may offer Third-Party Applications for sale under Service Orders. Any other acquisition by Client of Third-Party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Client and any Third-Party provider, is solely between Client and the applicable Third-Party provider. M-Analyst does not warrant or support Third-Party products or services, whether or not they are designated by M-Analyst as “certified” or otherwise, except as specified in a Service Order. No purchase of Third-Party products or services is required to use the Application Services.

5.2 Third-Party Applications and Client Data. If Client installs or enables Third-Party Applications for use with Application Services, Client acknowledges that M-Analyst may allow providers of those Third-Party Applications to access Client Data as required for the interoperation of such Third Party Applications with the Application Services. Notwithstanding anything to the contrary, M-Analyst shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Third-Party Application providers. The Application Services shall allow Client to restrict such access by Third Party Applications by restricting Users from installing or enabling such Third-Party Applications for use with the Application Services.

6. Fees & Payment.

6.1 Usage Fees. Client shall pay all fees specified on Exhibit A attached hereto. Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified, fees are based on the option selected by the Client during the implementation of this agreement and subsequent change requests as discussed and agreed upon in writing.

6.2 Invoicing & Payment. Fees for the Application Service will be debited from the Client’s designated account on a monthly basis and statements shall be provided electronically. Client is responsible for maintaining complete and accurate billing and contact information on the Application Service. Client hereby grants M-Analyst the right to debit Client’s Account for the payment of the Fees on a monthly basis for each of the services processed by M-Analyst during the immediately preceding calendar month. M-Analyst failure to so debit Client’s Account during any given month shall not be considered a waiver of its right to such month’s Fees.

6.3 Overdue Payments. Any payment not received from Client by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at M-Analyst's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

6.4 Suspension of Application Service. If Client's account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute, or as a result of force majeure event, in which case Application Service cannot be suspended unless Client’s account is sixty (60) days overdue), in addition to any of its other rights or remedies, M-Analyst reserves the right to suspend the Application Service provided to Client, without liability to Client, until such amounts are paid in full. 6.5 Taxes. Except as otherwise specified herein or in another writing agreed to by the parties, M-Analyst's fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on M-Analyst's net income or property. If M-Analyst has the legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides M-Analyst with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. Proprietary Rights.

7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, M-Analyst reserves all rights, title and interest in and to the Work Product, M-Analyst Information and Application Service, including all related intellectual property rights. M-Analyst hereby grants Client a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, , transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), license to use, copy, modify or distribute the Work Product solely for its internal business purposes. No rights are granted to Client hereunder other than as expressly set forth herein.

7.2 Restrictions. Client shall not (i) modify, copy or create derivative works based on the Application Service; (ii) frame or mirror any content forming part of the Application Service, other than on Client's own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Application Service; or (iv) access the Application Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Application Service.

8. Confidentiality.

8.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Service Orders hereunder), the Client Data, the M-Analyst Information, the Application Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Client Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

8.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose inconsistent with the terms and conditions or outside the scope of this Agreement, except with the Disclosing Party's prior written permission.

8.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner and degree that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

8.4 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 prompt 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.

8.5 Remedies. If the Receiving Party discloses or uses (or permits or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

9. Warranties & Disclaimers.

9.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. M-Analyst represents and warrants that (i) it will provide the Application Service and professional services in a manner consistent with general industry standards reasonably applicable to the provision thereof and in compliance with applicable laws and regulations; (ii) the Application Service shall perform materially in accordance with the Documentation; (iii) the functionality of the Application Service will not be materially decreased during a subscription term; (iv) the implementation services and Work Product will conform in all material respects to the applicable Statement of Work; (v) the Application Service and Work Product will not contain or transmit to Client any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); and (v) it owns or otherwise has sufficient rights in the Work Product, M-Analyst Information and Application Service to grant to Client the rights to use the Application Service granted herein.

9.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, M-Analyst MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF CLIENTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Mutual Indemnification.

10.1 Indemnification by M-Analyst. Subject to this Agreement, M-Analyst shall defend, indemnify and hold Client, its officers, directors and employees harmless from and against any damages or costs that are finally awarded against Client based on a claim, demand, suit, or proceeding ("Claims") brought against Client by a third party alleging that the use of the Application Service, as produced and furnished by M-Analyst hereunder, infringes a U.S. patent, copyright or trade secret. M-Analyst shall have no liability for any such Claim of infringement based on: (a) any modification of the Application Service by a person or entity other than M-Analyst; (b) any use or combination of the Application Service with any service, software, or equipment not supplied or approved in writing by M-Analyst; (c) any use of the Application Service not permitted by this Agreement; (d) products or processes developed pursuant to Client’s direction, design, or specification; or (e) any settlement or compromise of such Claim made without M-Analyst’s prior written consent. M-Analyst shall have no liability for any such Claim of infringement unless Client: (a) promptly gives written notice of the Claim to M-Analyst; (b) gives M-Analyst sole control of the defense and settlement of the Claim through counsel chosen and paid for by M-Analyst (provided that M-Analyst may not settle or defend any Claim unless it unconditionally releases Client of all liability); and (c) provides to M-Analyst, at M-Analyst's cost, all reasonable assistance. If such a Claim is made or M-Analyst believes that such a claim is likely, M-Analyst may, at its option: (a) procure the right for Client to continue to use the Application Service; (b) replace the Application Service with a functionally-equivalent, non-infringing service; (c) modify the Application Service to be non-infringing but otherwise functionally equivalent; or (d) terminate this Agreement, and return to Client any prepaid but unused fees. The foregoing states M-Analyst’s entire liability and Client’s exclusive remedy with respect to infringement of rights of others.

10.2 Indemnification by Client. Subject to this Agreement, Client shall defend, indemnify and hold M-Analyst, its officers, directors and employees harmless from and against any damages or costs that are finally awarded against M-Analyst based on a Claim brought against M-Analyst by a third party alleging that the Client Data, or Client's use of the Application Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party.

10.3 Client shall have no liability for any such Claim unless M-Analyst: (a) promptly gives written notice of the Claim to Client; (b) gives Client sole control of the defense and settlement of the Claim through counsel chosen and paid for by Client (provided that Client may not settle or defend any Claim unless it unconditionally releases M-Analyst of all liability); and (c) provides to Client, at Client's cost, all reasonable assistance.

11. Limitation of Liability.

11.1 Limitation of Liability. EXCEPT FOR DAMAGES CAUSED BY A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CLIENT HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

11.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Term & Termination.

12.1 Term of Agreement. This Agreement commences on the Effective Date and continues for one (1) year. Upon expiration of the initial term, the agreement automatically renews for additional one (1) year periods at the price as specified in the relevant Service or Service Order unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant subscription term.

12.2 Money back guarantee. . If for any reason, the customer is not satisfied during the first thirty (30) days following signature of the Agreement, M-Analyst will terminate this Agreement and refund 100% of the dollars paid to M-Analyst for its application.

12.3 Termination for Cause. A party may terminate this Agreement for cause by written notice: (i) if thirty (30) days after the non-breaching party has provided written notice of a material breach to the other party such breach remains uncured; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditor. Upon any termination for cause by Client, M-Analyst shall refund Client any prepaid fees covering the remainder of the subscription term after the date of termination.

12.4 Outstanding Fees. Termination shall not relieve Client of the obligation to pay any fees accrued or payable to M-Analyst prior to the effective date of termination.

12.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 6 through 11.

13. General Provisions.

13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing by certified mail, return receipt requested; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to M-Analyst shall be addressed to the Finance Department. Notices to Client shall be addressed to Client’s signatory of this Agreement unless otherwise designated below.

13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Service Orders and Statements of Work), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.7 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Florida, without regard to its conflicts of laws rules.

13.8 Venue; Waiver of Jury Trial. The state and federal courts located in Florida, Miami-Dade County shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

13.9 Publicity. Neither party may issue press releases relating 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 Clients or vendors in accordance with the other party's standard guidelines.

13.10 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Service Orders and Statements of Work, constitutes the entire agreement between the parties on the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Service Order or Statement of Work, the terms of such exhibit, addendum, Service Order or Statement of Work shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation (excluding Service Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

13.11 Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.

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