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UNIGO MARKETING SERVICES AGREEMENT
This agreement last updated 10/09/2018

This Unigo Marketing Services Agreement (the “Agreement”) is entered into as of your date of purchase as noted on your electronic receipt (the “Effective Date”), by and between EducationDynamics, LLC, a Delaware limited liability company (the “Company”) with its principal offices located at 111 River Street, 10th Floor, Hoboken, NJ 07030 and the Advertiser (the “Advertiser”) (collectively, the “Parties”).

WHEREAS, Company desires to provide the Advertiser with the services described in the Online Purchase (the “OP”); and

WHEREAS, Advertiser wishes to pay Company for the delivery of such services.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Services. Subject to the terms of this Agreement, Company will provide the services described in the OP, which outlines the Target Services Date, and Cost/Monthly Cap for a specific Services purchase by Advertiser. For the avoidance of doubt, Company retains the right to refuse, pause or stop any Campaign for any reason, including but not limited to compliance with its internal compliance and advertising guidelines. Company will provide the following Services:

A. Clicks. Company will provide a prospective consumer an opportunity to click-through to Advertiser’s designated website and/or landing page (a “click” or “ad click”, collectively, “Clicks”). Each such Click shall be deemed payable. Company will track such consumer action to the website and/or landing page.

2. Termination. Company may cancel this Agreement, for any reason or for no reason, in which case Company will return to Advertiser, within thirty (30) calendar days, the portion of payment made, if any, that relates to the period after cancellation and prior to the Services end date as specified in the purchase. Except for such return payment, the Company will have no liability in connection with any such termination.

3. Payment. Advertiser agrees to pay Company in US dollars immediately via the Square Marketplace.

4. License. Advertiser grants Company a non-exclusive worldwide right and license to use Advertiser’s trademarks, copyrights, and other intellectual property for the purpose of fulfilling its obligations under this Agreement. Company shall use Advertiser’s trademarks, copyrights, and other intellectual property in conformance with any reasonable usage policies of which it is notified in writing by Advertiser.

5. Reservation of Rights and Intellectual Property. Advertiser retains all ownership rights and intellectual property rights to the trademarks, creative, deliverables and any other materials provided by Advertiser to Company. Company retains all ownership rights and intellectual property rights to its Services, portals, forms, methodology, concepts, know-how, analyses, and other lead generation processes.

6. Confidential Information. Company and Advertiser understand and agree that in connection with the negotiation and performance of this Agreement, each party may have had or have access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other party, including, but not limited to, trade secrets and any other information that the receiving party reasonably should know is confidential (“Confidential Information”). Each party (on its behalf and on behalf of its subcontractors, employees or representatives or agents of any kind) agrees to hold and treat all Confidential Information of the other party in confidence and will protect the Confidential Information with the same degree of care as each party uses to protect its own Confidential Information of like nature. Between the Parties, Company shall retain ownership of Data, Lead contact information and any data relating to Lead behavior when a Lead interacts with Company’s offers or services, whether or not such Lead is contacted by Advertiser. Upon Company’s request, Advertiser shall make available data relating to the Lead after the Lead has been delivered to Advertiser by Company (“Lead Data”), and Company agrees to keep this data confidential. Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representatives); (ii) is available to the receiving party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving party without violating its obligations under this Agreement or under any federal or state law. This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures. The Confidential Information will not, without the prior written consent of the other party, be disclosed to any third party, except that the receiving party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents, and representatives on a need-to-know basis or (b) as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving party is required to disclose such Confidential Information under this Section, the receiving party shall promptly notify the disclosing party of such pending disclosure and consult with the disclosing party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Neither party shall use any Confidential Information received from the other party except as may be necessary in its performance under this Agreement. The parties acknowledge that unauthorized use by a party of the other party’s Confidential Information will diminish the value of such information and that breach of this obligation may cause irreparable harm and entitle the non-breaching party to seek injunctive relief to protect its interest herein, in addition to any other monetary or other remedies it may be entitled to hereunder.

7. Representations and Warranties.

A. Mutual Representations and Warranties. Each of the Parties represents and warrants that (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreements to which it is a party; (iii) its performance hereunder will comply with all applicable laws, rules, and regulations relating to online privacy or otherwise; (iv) this Agreement constitutes a legal, valid and binding obligation of it when executed and delivered; and (v) it has and will have the necessary rights, title, and interest to grant the licenses granted herein.
B. Company’s Representations and Warranties. Company represents and warrants as follows: (i) it has the right to operate Company’s websites, newsletters, and other Services methods at the Company’s discretion, and Advertiser’s advertisements will appear as provided in this Agreement and (ii) Company is in compliance with all relevant privacy laws and regulations and that it shall provide notice for, and clearly disclose, its privacy policies and practices to visitors to its websites(s), including its policies and practices with respect to the collection of information on consumers who may visit its web site(s).
C. Advertiser’s Representations and Warranties. Advertiser represents and warrants as follows: (i) it is fully authorized to publish, and authorizes Company to publish content on its behalf, and that all content, once approved by Advertiser, complies with all applicable laws and regulations and does not infringe upon the rights of third parties; (ii) Company reserves the right to refuse any advertising request or to immediately cancel any campaign that does not reasonably conform to every detail, instruction, method, and guideline set forth in this Agreement or Company’s compliance guidelines; (iii) it is the sole owner of its trademarks licensed hereunder and of any and all rights, including intellectual property rights, in and to such trademarks or, if an agency, has the right to license such trademarks and other intellectual property rights hereunder; (iv) if applicable, it holds any and all awards, accreditations, rankings or other indicia of industry prestige or legitimacy that it states that it holds on Advertiser or Company’s website or in any written or oral statements to Company; (v) it will comply with all applicable international, national, state, and local laws, rules, and regulations applicable to Advertiser’s business as it relates to the Services provided in this Agreement; (vi) it is and will remain in full compliance with all relevant privacy laws and regulations and that it shall provide notice for, and fully disclose, its privacy policies and practices to visitors to its website(s), including its policies and practices with respect to the collection, security, and use of information on consumers who may visit its website(s); (vii) it is not in violation of its privacy policy or any agreement and entering into this Agreement does not create such a violation; (viii) it will limit its use of the data provided by Company for the purposes of this Agreement and pursuant to any consent provided by consumer; (ix) if Advertiser is an agency; Advertiser will limit the provision of consumer data delivered by Company to Advertiser under this Agreement to Advertiser’s client and will assure Advertiser’s client’s agreement to abide by this limitation; (x) it is prohibited from re-selling, repurposing, or any other unauthorized use of the Date, Lead contact information, and any other consumer data delivered by Company to Advertiser under this Agreement; (xi) if applicable, it will deliver advertising materials in a format acceptable to Company; (xii) it is responsible for informing Company of any changes to linking URL or inquiry email address required (Company will fulfill any change requests within five (5) business days of written request by Advertiser) and is responsible for maintenance of a functional website landing page; and (xiii) if an Agency is entering into this Agreement on behalf of a client, Agency agrees to the foregoing representations, and also represents and warrants that it is the authorized agent of its client, and client is not, as of the date of this Agreement, in material breach of any agreement with or in default with respect to any amounts owed to agency.
D. Data Security. Advertiser further represents and warrants that it will: (i) maintain Data, Leads, and other consumer information provided by Company or generated by Company pursuant to this Agreement in accordance with all applicable laws, rules and regulations; (ii) maintain and enforce security procedures and standards with respect to the access and maintenance of data, including Data, Leads, and other consumer data provided pursuant to this Agreement, and will provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such data; (iii) take reasonable security measures (but in no event measures less than those considered to be industry standard) to secure and defend its location and equipment against “hackers” and others who may seek, without authorization, to modify or access computer systems or the information found therein without the consent of Advertiser; and (iv) periodically test its systems for potential areas where security could be breached and, if a security breach occurs, will be responsible for complying with all applicable laws pertaining to such a security breach (to the extent permitted by applicable law, Advertiser shall provide Company with a copy of any communication sent in compliance with said laws).

8. Indemnification. Each party (the “Indemnifying Party”) agrees to hold harmless, indemnify and defend the other, its affiliates, and their respective successors and assigns, and the shareholders, members, directors, officers, employees, and agents of any and all of the foregoing (the “Indemnified Parties”) from and against any losses, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of or relating to any claims brought by a third party: (i) that the Indemnifying Party or any of its agents under the Indemnifying Party’s control breached or allegedly breached its confidentiality obligations as set forth in Section 7; (ii) that the Indemnifying Party breached its warranties or representations as expressly set forth in Section 8 and Exhibit B (Advertiser Email Marketing Terms), unless such claims arose out of or were caused by the negligence or willful misconduct of the Indemnified Party; and (iii) claims relating to the Indemnifying Party’s (or if Advertiser is agency, then agency’s client’s) business or trademarks, copyrights, or any other materials provided by or made available by the Indemnifying Party. The Indemnified Party will (a) give the Indemnifying Party written notice of any claim, action, suit, and proceeding for which the Indemnified Parties are seeking indemnity; (b) grant control of the defense and settlement to the Indemnifying Party; and (c) provide, at the Indemnifying Party’s expense, reasonable assistance in the defense or settlement thereof. In any event, the Indemnified Parties shall have the right to participate, at their own expense, in the defense or settlement of any claim, action, suit or proceeding that is the subject of an indemnification obligation. The Indemnifying Party will not settle any claim that creates any ongoing liability to the Indemnified Party or an admission of liability with respect to any claim without the Indemnified Party’s written consent, which said consent shall not be unreasonably withheld.

9. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE WITH RESPECT TO ITS PRODUCTS AND/OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICES ARE PROVIDED “AS IS” AND AT ADVERTISER’S OPTION AND RISK. COMPANY MAKES NO WARRANTY OR GUARANTEE OF ANY KIND THAT THE SERVICES PROVIDED HEREUNDER WILL PROVIDE CERTAIN RESULTS, SPECIFIC VOLUMES OF TRAFFIC, ACCURATE CONSUMER INFORMATION, CONVERSIONS OR SALES OBJECTIVES OR ANY LEVEL OF PROFIT OR BUSINESS. ADVERTISER UNDERSTANDS AND ACCEPTS THAT CONSUMER AND CONSUMER DATA HAVE NOT BEEN SCREENED OR VALIDATED BY COMPANY AND ARE NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND COMPANY IS NOT LIABLE FOR SUCH INACCURACIES.

10. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, FOR THE OPERATION OR USE OF CONTENT OR SERVICES, SUCH DAMAGES ARISING FROM OR RELATED TO LOSS OF OR DAMAGE TO DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY ACTS OR OMISSIONS OF THIRD PARTIES, EXCEPT THAT ADVERTISER WILL BE LIABLE FOR ACTS OR OMISSIONS OF ITS AGENTS ACTING UNDER ADVERTISER’S CONTROL. COMPANY’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES PAID BY ADVERTISER TO COMPANY FOR SERVICES HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE A CLAIM IS RAISED HEREUNDER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.

11. Miscellaneous. (i) No conditions other than those set forth in this Agreement shall be binding on either party unless expressly agreed to in writing. No modifications to this Agreement shall be binding upon either Party without the express, written consent of each Party. Except as otherwise provided hereunder, in the event of any inconsistency between this Agreement or any OP and this Agreement, this Agreement shall control. This Agreement shall supersede any and all other agreements, whether written or oral, between the Parties. Each Party hereby rejects any terms or conditions (“Form Terms”) appearing on any purchase or IOs or other supplements that are in addition to, or different from, this Agreement, and the parties agree that all such Form Terms shall be void and of no force or effect. (ii) The Parties agree that Company shall have the right to reference and refer to its work for and relationship with Advertiser for marketing and promotional purposes. (iii) The Parties agree that their relationship hereunder is that of independent contractors. Neither Party shall be deemed to be the agent, partner, joint venture, franchisor-franchisee, nor employee of the other Party, and neither shall have any authority to make any agreements or representations on the other’s behalf other than as set forth in this Agreement. (iv) Rights and obligations under Sections 6, 7, 9, 10, 11, 12, 14 and 15 shall survive and will remain in full force and effect upon termination of this Agreement. (v) Neither Party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required (except with respect to payment obligations) as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence (including without limitation, equipment failure) provided that the non-performing party give reasonably prompt notice under the circumstances of such condition(s) to the other party. (vi) This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement shall only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in Hudson County, New Jersey, USA. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN HUDSON COUNTY, NEW JERSEY, USA.

12. Reservation of Company Right to Revise the Agreement. Notwithstanding anything to the contrary herein, the Parties agree that subsequent to Initial Period, Company may revise this Agreement upon thirty (30) business day’s prior written notice to Advertiser. Such revisions may include but are not limited to changes to Services specified in any applicable OP. In the event Advertiser chooses not to abide by the revised Agreement, Advertiser may terminate this Agreement according to the termination provisions herein; otherwise, the revised Agreement will be binding upon Advertiser.

13. Legal Construction. If one or more of the provisions contained in this Agreement is held to be invalid, illegal, or unenforceable in any respect for any reason by a court of competent jurisdiction, the invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

14. Waiver. The waiver by the Company of a breach of the Agreement shall not operate or be construed as a waiver of any subsequent breach thereof.

15. Authority. By consenting to this Agreement, the Advertiser representative acknowledges, represents, and warrants that she/he has the authority to act on behalf of the Advertiser and accept all terms and conditions in this Agreement.