EXACTTARGET EMAIL SERVICES AGREEMENT - DOC by sho18413

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									                                            EXACTTARGET EMAIL SERVICES AGREEMENT


This ExactTarget Email Services Agreement (“Agreement”) is entered into this __ day of December, 2005 (the “Effective Date”) by and
between ExactTarget, Inc., (“ExactTarget”) and Family & Social Services Administration (“Customer”).

                                                                 RECITALS

A. ExactTarget is in the business of providing web-based email marketing services.

B. Customer desires to engage the services of, ExactTarget in connection with its marketing efforts on the terms and conditions provided
herein.

NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:

1.    DEFINITIONS. “Services” means the provision of electronic access to ExactTarget’s email marketing software over a computer
network and related technical support services as further described in Attachment A. “Affiliate” means, with respect to an entity, any entity,
whether incorporated or not, that controls, is controlled by, or under common control with the first entity or its corporate parent, where
“control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership,
contract or otherwise.

2.    SERVICES. Subject to the terms and conditions of this Agreement, ExactTarget shall provide Services to Customer and Customer
hereby engages ExactTarget to provide the Services. This is not a technology license agreement and, except as provided for in this
Agreement, it does not give Customer any right to use any proprietary software or hardware technology used by ExactTarget to provide the
Services.

3.    USE. The Services are being provided only in and for Customer’s and its Affiliates’ internal purposes and business operations.
Customer may not use the Services as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify,
enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Services or any software used to provide the
Services, in whole or in part, is granted except as expressly provided by this Agreement. Neither Customer nor its Affiliates shall reverse
engineer, decompile or disassemble the Services or any software used to provide the Services.

4.    TERM. This Agreement will become effective as of (and the Services shall start on) the Effective Date and, unless sooner terminated
as provided in this Agreement, shall continue for a period of one (1) year (the “Initial Term”). Thereafter, this Agreement will automatically
renew for successive one (1) year periods on each anniversary of the Effective Date (each a “Renewal Term”), unless one of the parties
has notified the other of its election to terminate this Agreement at least thirty (30) days prior to the end of the then expiring term.

5.    PRICING; PAYMENT. The Services will be provided by ExactTarget to Customer at the prices set forth on Attachment A. The prices
set forth on Attachment A are subject to change, from time to time after the Initial Term of this Agreement, upon thirty (30) days' advance
written notice to Customer, which notice may be given, among other ways, by email or a posting on ExactTarget’s website. Invoices are
due upon Customer’s receipt thereof and Customer shall pay such invoices in accordance with the terms and conditions set forth on
Attachment A. Failure to pay to ExactTarget in accordance with Attachment A shall constitute a material breach of this Agreement.
Customer shall pay a late fee of one and one-half percent (1½%) per month on all amounts due but not paid within thirty (30) days of the
invoice date and ExactTarget may, as a result of such late payment, among other remedies available to it, discontinue its provision of the
Services to Customer in accordance with Section 15 below.

6.    TAXES. Customer is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes,
intangible taxes, property taxes, and similar taxes and duties) resulting from Customer’s acceptance of the Services, excluding, however,
any taxes payable by ExactTarget as a result of income earned by ExactTarget hereunder. Customer shall pay any such taxes as they fall
due to ExactTarget for remittance to the appropriate authority. Customer shall hold harmless ExactTarget from all claims and liability
arising from Customer’s failure to report or pay such taxes.

7.   CONFIDENTIALITY.

a.   Customer Obligations. Customer acknowledges that the Services, any software used to provide the Services, and any other
     information provided to Customer by ExactTarget incorporate confidential and proprietary information developed by, acquired by, or
     licensed to ExactTarget (“ExactTarget Confidential Information”). Customer and its Affiliates will take all reasonable precautions
     necessary to safeguard the confidentiality of the ExactTarget Confidential Information. Neither Customer nor its Affiliates will make
     any unauthorized use of the ExactTarget Confidential Information or disclose, in whole or in part, any part of the ExactTarget
     Confidential Information to any individual or entity, except to those of Customer’s employees or consultants who require access for
     Customer’s authorized use of the ExactTarget Confidential Information and agree to comply with the use and nondisclosure
     restrictions applicable to the ExactTarget Confidential Information under this Agreement. Customer acknowledges that any
     unauthorized use or disclosure by it or its Affiliates of the ExactTarget Confidential Information may cause irreparable damage to
     ExactTarget. If ExactTarget becomes aware of Customer’s breach or threatened breach of this Section 7(a), ExactTarget may
     suspend any and all rights granted to Customer under this Agreement and shall be entitled to injunctive relief, without the need of
     posting a bond, in addition to all legal or equitable relief that may be available to ExactTarget.

b.   ExactTarget Obligations. ExactTarget acknowledges that, during the term of this Agreement, it may have access to email addresses
     of Customer’s clientele (“Customer Confidential Information”). ExactTarget will take all reasonable precautions necessary to
     safeguard the confidentiality of such information and will not disclose, in whole or in part, any such information to any individual or
     entity, except to those employees and consultants of ExactTarget who require access in connection with the provision of the Services
     hereunder. Upon the termination of this Agreement, ExactTarget shall delete all Customer Confidential Information and destroy all
     copies of documents and other things in its possession that constitute, or contain records of, Customer Confidential Information.
     Without limiting the generality of the foregoing, email addresses and other information pertaining to a customer or client of Customer
     shall not constitute Customer Confidential Information if ExactTarget receives such information from a source other than Customer.
     ExactTarget acknowledges that any unauthorized use or disclosure by it of the Customer Confidential Information may cause
     irreparable damage to Customer. If Customer becomes aware of ExactTarget’s breach or threatened breach of this Section 7(b),


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      Customer shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be
      available to Customer.

c.    Exceptions. The confidentiality obligations set forth in this Section 7 shall not apply, or shall cease to apply, to information which (i)
      was publicly available at the time of disclosure to the other party, (ii) becomes generally known to the public after disclosure to the
      other party, through no fault of the other party, or (iii) is disclosed under force of law, governmental regulation or court order.

8.    INDEMNIFICATION.

a.    By Customer. Subject to Section 18 below, Customer shall indemnify and hold ExactTarget, and its officers, directors, employees,
      and agents, harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including
      reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) a
      breach of Customer’s obligations hereunder, (ii) any material breach of Customer’s representations and/or warranties contained
      herein, (iii) ExactTarget’s use, in connection with its performance of the Services hereunder, of any email addresses, Customer end
      user information, or other information that ExactTarget obtains from Customer or its Affiliates for purposes of providing such services,
      (iv) any content provided by Customer or its Affiliates, or (v) any emails, newsletters, or other materials sent out by Customer or its
      Affiliates using the Services.

b.    By ExactTarget. Subject to Section 18 below, ExactTarget shall indemnify and hold Customer, and its officers, directors, employees,
      and agents, harmless from and against any third party claims, losses, damages, liabilities, costs or expenses of any nature (including
      reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with any
      material breach of ExactTarget’s representations and warranties contained herein.

9.    CUSTOMER’S REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to ExactTarget that:

a.    Customer’s agreement to engage ExactTarget to perform the Services hereunder does not violate any agreement or obligation
      between Customer and any third party.

b.    Neither any information delivered by Customer to ExactTarget in support of this Agreement nor Customer's performance of this
      Agreement will infringe on any copyright, patent, trade secret or other proprietary right held by any third party.

c.    None of the activities for which Customer has engaged the services of ExactTarget shall violate any international, federal, state, or
      local law or regulation relating to individual privacy or the distribution of email messages. Neither Customer nor its Affiliates will use
      the Services for purposes of, or transmit via the Services, (i) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic,
      profane, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions
      constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local,
      state, national or foreign law, including without limitation the U.S. export control laws and regulations; (ii) any chain letters, pyramid
      schemes, or other similar deceptive, misleading and/or fraudulent content; (iii) any unsolicited commercial or non-commercial
      communication; (iv) any emails with deceptive, misleading or false subject lines or header information that makes it difficult to identify
      the initiator of the email; or (v) any information containing a virus, trojan horse, worm, or other harmful component.

d.    Each person as to whom email addresses are provided to ExactTarget by Customer or its Affiliates (i) has been or will be given notice
      of Customer’s or its Affiliate’s) information practices (which practices shall not constitute an unfair or deceptive trade practice or be
      contrary to any privacy laws or requirements), (ii) has been or will be given a choice with respect to the use by Customer or its
      Affiliates of such information, (iii) has been or will be given access to information collected about such person, (iv) can or will be
      categorized as an “opt-in” recipient by his, her or its agreement with Customer to receive such information via email, and (v) has not
      or will not have notified Customer or its Affiliates of his, her or its desire not to receive email (i.e., no such person has “opted out” of
      the receipt of email with respect to Customer or its products or services or any of Customer’s Affiliates or their products or services).

e.    Upon notification from any person that such person desires not to receive email with respect to Customer or its Affiliates or any of
      their respective products or services, Customer will promptly unsubscribe such recipient.

f.    Customer has reviewed the ExactTarget Member Privacy Policy and the ExactTarget Anti-Spam Policy located on ExactTarget’s
      website and shall abide by their respective terms. Customer has further reviewed and executed the ExactTarget Anti-Spam
      Certification set forth on Exhibit 1 attached hereto and made a part hereof.

g.    When executed and delivered by Customer, this Agreement will constitute the legal, valid, and binding obligation of Customer,
      enforceable in accordance with its terms.

10.   EXACTTARGET’S REPRESENTATIONS AND WARRANTIES. ExactTarget represents and warrants to Customer that:

a.    ExactTarget’s agreement to perform the Services hereunder does not violate any agreement or obligation between ExactTarget and
      any third party.

b.    To the best of ExactTarget’s knowledge, the Services do not infringe on any copyright, patent, trade secret or other proprietary right
      held by any third party.

c.    When executed and delivered by ExactTarget, this Agreement will constitute the legal, valid, and binding obligation of ExactTarget,
      enforceable in accordance with its terms.

11.   CUSTOMER CERTIFICATION & ACKNOWLEDGEMENTS. Customer certifies that it understands and acknowledges that:

a.    ExactTarget may, at its sole discretion, refuse to distribute any email content or other information provided by Customer or its
      Affiliates that contains information that ExactTarget has reason to believe to be defamatory, infringing, or otherwise unlawful.
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b.    ExactTarget may, at its sole discretion, refuse to distribute any email to any email address that ExactTarget has reason to believe has
      not granted permission (or otherwise “opted-in”) to Customer or its Affiliates to send such email(s) or that ExactTarget has reason to
      believe is otherwise unlawful.

c.    ExactTarget has no obligation to review email content, email addresses or related information provided by Customer to ensure that
      such comply with applicable laws and Customer accepts full responsibility for compliance with such laws.

d.    All email addresses shall be supplied solely by Customer. ExactTarget has no obligation to supply, “scrub”, or otherwise verify the
      legal compliance of any email list.

e.    ExactTarget is an electronic mail service provider involved only in the routine conveyance of emails; ExactTarget does not initiate or
      send emails on behalf of Customer. The Services enable Customer to initiate and send emails.

f.    Customer is solely responsible for the creation, initiation and sending of its emails, including, but not limited to, the content of such
      emails, the recipients of such emails, and the timing of such emails.

12. EXACTTARGET OUTAGE POLICY. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, EXACTTARGET DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR FREE AND THAT EXACTTARGET MAY OCCASIONALLY EXPERIENCE “HARD OUTAGES” DUE TO INTERNET
DISRUPTIONS THAT ARE NOT WITHIN EXACTTARGET’S CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A
BREACH OF THIS AGREEMENT BY EXACTTARGET.

13. FORCE MAJEURE. To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to
circumstances reasonably beyond its control (including, but not limited to, the action or inaction of any governmental, civil or military
authority; a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or
other civil disturbance) and not involving such party’s negligence, such party shall not be liable to the other party for any losses or damages
arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen
circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur
within fifteen (15) days, the other party hereto shall have the right to terminate this Agreement, effective upon delivery of written notice of
the same to the other party, and no party shall be liable to any other arising out of such termination, except for obligations existing prior to
such termination.

14. NOTICES. Any notice or correspondence required or permitted to be given or forwarded hereunder or by law shall be effective on
receipt and shall be considered properly given if in writing and delivered personally or faxed with confirmation or sent by any commercially
reasonable means of receipted delivery, addressed, with respect to Customer, to the address of Customer most recently provided in writing
to ExactTarget, and with respect to ExactTarget, to the address of ExactTarget appearing on its web site at the time of such notice.

15. TERMINATION. Either party shall have the right to terminate this Agreement prior to expiration of its term: (i) in the event of the other
party’s material breach of any of the provisions hereof and the failure of the breaching party to cure such breach to the reasonable
satisfaction of the non-breaching party within fifteen (15) days after receipt of written notice informing it of such material breach, (ii) in
accordance with the provisions of Section 13 hereof, or (iii) in the event a petition seeking composition of creditors, the protection afforded
by the United States Bankruptcy Code or benefit of other laws affecting the rights of creditors generally is filed by or against the other party
and such petition remains unstayed or undismissed for a period of thirty (30) days. Upon termination of this Agreement, all services
provided to Customer hereunder will terminate. Promptly upon termination of this Agreement for any reason, Customer must return or
destroy, as requested by ExactTarget, all materials pertaining to the Services (including all copies thereof).

16. OWNERSHIP. All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related
to the Services, or otherwise used to perform the Services for Customer or its Affiliates hereunder, are and will remain the sole and
exclusive property of ExactTarget, whether or not specifically recognized or perfected under applicable law. ExactTarget shall own all
rights, title and interest, including all intellectual property rights, in and to any improvements to the existing Services or any new programs,
upgrades, modifications or enhancements developed by ExactTarget in connection with rendering the Services to Customer or its Affiliates,
even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and
improvements does not automatically vest in ExactTarget by virtue of this Agreement or otherwise, Customer hereby transfers and assigns
(and, if applicable, shall cause its Affiliates to transfer and assign) to ExactTarget all rights, title, and interest which Customer or its Affiliates
may have in to such refinements and improvements.

17. NONEXCLUSIVITY. Customer acknowledges and agrees that ExactTarget is in the business of providing email marketing services,
and that ExactTarget may provide services to third parties, including competitors of Customer or its Affiliates, which are the same or similar
to the services provided to Customer or its Affiliates hereunder.

18. LIMITATION OF LIABILITIES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HERETO OR TO ANY THIRD PARTY
FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION,
LOST PROFITS, LOSS OF DATA, OR FRUSTRATION OF BUSINESS EXPECTATIONS, WHETHER ARISING OUT OF SUCH PARTY’S
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE). NEITHER PARTY SHALL ASSERT ANY SUCH CLAIM AGAINST THE OTHER
OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OR EMPLOYEES.
EXACTTARGET’S MAXIMUM LIABILITY HEREUNDER FOR ANY CLAIMS WHATSOEVER IS EXPRESSLY LIMITED TO THE AMOUNT
PAID UNDER THIS AGREEMENT BY CUSTOMER TO EXACTTARGET DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING
THE CAUSE GIVING RISE TO THE CLAIM, IF ANY. NO CLAIM MAY BE BROUGHT BY THE CUSTOMER OR ANY OF ITS AFFILIATES
UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.

19. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE
PROVIDED HEREUNDER BY EXACTTARGET “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXACTTARGET EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES,
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WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT.    NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION,
STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY
EMPLOYEES OF EXACTTARGET OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE
A WARRANTY BY EXACTTARGET FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF EXACTTARGET WHATSOEVER.

20. CUSTOMER TRADEMARKS. Upon receipt of Customer’s written authorization, ExactTarget may use the trademarks and trade
names of Customer in connection with its provision of the Services and in connection with the marketing by ExactTarget of its services to
third parties. Upon receipt of Customer’s written authorization, ExactTarget may use specific email examples generated by Customer in
connection with the marketing by ExactTarget of services to third parties. ExactTarget shall comply with any reasonable written guidelines
of Customer relating to usage of Customer's trademarks or trade names. ExactTarget shall discontinue use of Customer’s trademarks or
trade names upon the expiration or termination of this Agreement, except as may be required to exhaust any marketing materials on hand
at the time of such expiration or termination.

21. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of
Indiana, without reference to any jurisdiction’s conflict of laws principles, and all proceedings relating to the subject matter hereof shall be
maintained exclusively in the courts situated in Marion County, Indiana. Customer hereby consents to personal jurisdiction and venue
therein and hereby waives any right to object to personal jurisdiction or venue.

22. ATTORNEY FEES. In the event either party hereto shall resort to legal action for the redress of a breach of this Agreement, the
prevailing party shall be entitled to an award of all costs and reasonable attorney fees.

23. WAIVER. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver,
amendment or modification is in writing and signed by the party against whom enforcement of such waiver, amendment or modification is
sought. The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time
performance by one or both of the parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future
waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.

24. ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors
and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the
prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which
has otherwise succeeded to all or substantially all of the assets or equity securities of the assignor, and which has assumed in writing or by
operation of law, the assignor’s obligations under this Agreement.

25. INVALID PROVISIONS; SEVERABILITY. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

26. ENTIRE AGREEMENT; GENERAL. This Agreement, including all attachments and exhibits hereto, represents the complete
understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous
agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument
executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third
party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out
to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both
parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to
any term of condition of this Agreement.



CUSTOMER: Family & Social Services Administration                                   EXACTTARGET, INC.



By: ____________________________________                                            By: ________________________________
                                                                                        William K. Boncosky, General Counsel

Printed: ________________________________


Title: ___________________________________




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