Client Terms

CLIENT TERMS & CONDITIONS

Confidentiality: Each party shall keep confidential any confidential business information relating to the other party thereto including, but not limited to, sales information, marketing information and promotion plans discussed or disclosed in the course of performing this Agreement. Each party shall promptly, as of the termination of this Agreement, return to the other party any such information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof). “Confidential information” shall not include information which (a) was already known to the receiving party prior to the time that it is disclosed to such party; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (c) has been rightfully received from a third party without breach of this Agreement; (d) has been approved for release by the disclosing party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing party has been given reasonable notice of the pendency of such an order and the opportunity to contest it. The obligations under this paragraph shall continue for two (2) years following expiration or termination of this Agreement. Notwithstanding the foregoing and without violating any provisions of this Confidentiality Section, Mercury shall have the right to use results from this work to publish case studies, white papers, etc. at its sole discretion, including sales lift information when shared.

Pricing: At Mercury’s discretion, pricing subject to change upon Client’s request for 1) substantial modifications to any aspect of an assignment; or 2) additional revisions to the implementation of an assignment project beyond the initial scope, 3) Should unforeseen duties or tariffs be implemented on offshore goods before they are delivered, prices will be increased to reflect increased duties and tariff. Any quotes are valid for thirty (30) days unless otherwise stated in the quote.

Late Fees and Charges: There will be a 3% service charge for any amounts in excess of $1,000 which are paid by credit card. For any late payment, Mercury reserves the right to charge interest at 1.5% per month or the highest rate allowed by law, whichever is less. In addition, international shipments may be subject to duties and taxes. These charges may be assessed weeks after the shipment has been delivered and will be billed if or when they are assessed by the carrier.

Representations & Warranties: Client represents that (a) it has all necessary rights to grant Mercury the right to use the any promotion materials provided by client without infringing and/or breaching any right of any third party including, but not limited to, any intellectual property right, proprietary right, statutory or common law right, or contractual right; (b) its advertising claims for its products used in connection with this Agreement shall not be false or misleading; (c) it has in its possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without, to such party’s knowledge, any objection by any local, state or federal government agency, and (d) information Client provides to Mercury will not violate or infringe the copyright, trademark, trade name, patent, literary, intellectual, artistic or dramatic right, right of publicity or privacy or any other right of any entity or person or contain any material which is libelous, slanderous or obscene. Mercury makes no warranties, express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose.

Indemnification: Each party shall indemnify, defend and hold the other party harmless, and its directors, officers, shareholders, employees, and agents, from and against any and all suits, actions, legal or administrative proceedings, claims, demands, actual damage, fines, punitive damages, losses, costs, liabilities, interest, settlements, judgments and attorneys’ fees, directly or indirectly arising out of or resulting from a party’s (a) negligent acts or omissions of obligations relating to this Agreement and its performance under this Agreement; (b) the breach of any of the provisions hereof by a party; and (c) negligent acts or omissions of any third party employed by a party to perform any portion of the other party’s duties or obligations contained herein.

Force Majeure: Mercury shall not be considered in default of this Agreement or liable for fees, costs and/or damages, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, pandemic, epidemic, transportation delays, government action or other cause beyond Mercury’s reasonable control. Cancelled orders require compensation for incurred costs and related obligations of Mercury.

Limitation of Liability: IN NO EVENT SHALL MERCURY, ITS AGENTS OR ITS AFFILIATES BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ADDENDUM, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF. Further, the total liability, in the aggregate, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and expert-witness fees and costs of any nature whatsoever or claims resulting from or in any way related to this Agreement shall not exceed the total payment to be paid to Mercury, excluding third party expenses, under the Statement of Work(s) or services subject to such dispute. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising.

Insurance: Client agrees throughout the term of this Agreement to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error & omissions liability and professional liability insurance coverage in an amount satisfactory to Mercury, at its own expense, naming Mercury as an additional insured. Client shall furnish a certificate of insurance evidencing same upon execution of this Agreement.

Governing Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns. Further, all actions or proceedings instituted by any party relating to this Agreement shall be instituted in the Macomb County Circuit Court or federal courts for the Eastern District of Michigan and the parties do hereby waive all questions of personal jurisdiction or venue for the purpose of carrying out this provision.

Alternative Dispute Resolution: In Mercury’s sole discretion, all claims arising out of or relating to these Terms of Service shall be resolved by arbitration in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Any such arbitration shall be conducted in the Macomb County, Michigan, or in such other place as may be mutually agreed to by the parties and shall be heard by a panel of one arbitrator mutually acceptable to the parties or, if the parties are unable to agree on an arbitrator, an arbitrator appointed in accordance with the rules of JAMS. The decisions and awards of an arbitrator regarding any dispute shall be (i) final and valid, non-appealable, and binding upon the parties, and (ii) enforceable in any court of competent jurisdiction. In the event that any dispute arising under, in connection, or with respect to this Agreement is resolved by arbitration, the prevailing party shall be entitled to recover from the non-prevailing party the fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of counsel) incurred by the prevailing party in connection with, or as a result of, such dispute. In addition, the non-prevailing party shall pay the fees and expenses of the arbitrator.

Severability: If any term or condition of the Agreement is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of the Agreement, unless enforcing the balance of the Agreement would deprive either party of a fundamental benefit of its bargain.

Relationship of the Parties: Nothing contained herein shall place the parties in the relationship of partners, joint venturers, principal-agent, or employer-employee and neither party shall have any right to obligate or bind the other in any manner whatsoever.

Bankruptcy: Without limiting in any way the right of any party to this Agreement to seek monetary damages or other legal, equitable or injunctive relief in the event of any breach of this Agreement, if either party hereto files a petition for bankruptcy, or is adjudicated bankrupt or if such a petition is filed against either party, or if either party is insolvent or makes any assignment for the benefit of its creditors, or enters into an arrangement with its creditors pursuant to any other bankruptcy law, then such other party may terminate this Agreement, at its sole discretion following such action and shall have no obligation under this Agreement (except to make payments on a pro rata basis) for obligations performed up to the point of such action.

Assignment: Except as specifically permitted herein, this Agreement may not be assigned by either party without the consent of the other. Any assignment without such consent shall be void. Notwithstanding the above, either party may assign this Agreement to an Affiliate or the successor of its business without such consent. “Affiliate” means any business that directly or indirectly through intermediate controls, is controlled by or is under common control with Mercury.

Entire Agreement/Amendment: This Agreement constitutes the entire agreement between the parties with respect to this Purchase Order only. No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of the parties. This Agreement supersedes any prior agreements between the parties as to this program only. Each party represents they have the right, power and authority necessary to enter into this Agreement.