FieldTest Services Agreement
Last Updated and Effective as of: April 11, 2023 (“Effective Date”)
This FieldTest Services Agreement (“Services Agreement”) governs the Services (defined below) provided by FieldTest, Inc. (“FieldTest”) to the advertiser set forth in the applicable SOW or IO (each defined below) that references this Services Agreement (“Advertiser”). FieldTest and Advertiser may be referred to each as a “Party” and collectively as the “Parties”). All definitions in the Agreement apply both to their singular and plural forms, as the context may require.
In consideration of the mutual promises set forth in the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties agree as follows:
1. Scope of Services
(a) FieldTest will provide advertising services to Advertiser, which may include creative services and media buying (collectively, “Services”) as more particularly described in one or more statements of work and/or insertion orders that reference this Services Agreement (each, a “SOW” or “IO” as applicable), which will be substantially in the form attached below as Exhibit A or Exhibit B (each SOW, IO, and this Services Agreement collectively, “Agreement”). If there is a conflict between this Services Agreement, a SOW, or IO, the conflict will be resolved according to the following order of precedence: (i) IO; (ii) SOW; and (iii) Services Agreement. In the event Advertiser requests any changes to a SOW or IO, such changes must be in writing (e-mail or online approval sufficient), and include the revised scope of Services, pricing, and delivery deadlines.
(b) Advertiser will provide reasonable cooperation to FieldTest in connection with the Services, and be responsible for providing all materials, direction, and/or approvals required by Advertiser. FieldTest will not be responsible for any delays in providing the Services or any Deliverable (defined below) which are caused by Advertiser’s acts or omissions, including Advertiser’s delays or requests for changes to the scope of Services. FieldTest’s deadlines automatically will be extended by the period of any delay caused by Advertiser.
2. Ownership
(a) Work for Hire. Except for Third-Party Materials and Pre-Existing Materials (each defined below), all final, fully paid for deliverables or materials developed by or for FieldTest in connection with the Agreement (“Deliverable”) will be the sole property of Advertiser. In addition, all Deliverables that are protectable by copyright are a “work made for hire” as that term is defined in the United States Copyright Act, and Advertiser will be the author of such copyrightable works. To the extent that any Deliverable is not owned by Advertiser as a work-for-hire, FieldTest hereby irrevocably assigns to Advertiser all of its right, title and interest in and to all such Deliverables and will cause its employees and contractors to irrevocably assign to Advertiser all rights, title and interest they may have in and to all such Deliverables. FieldTest agrees that the foregoing includes a present conveyance to Advertiser of all right, title and interest in any Deliverables that are not yet in existence. To the extent that moral rights (including rights of attribution and integrity) cannot be assigned under applicable law, FieldTest hereby irrevocably waives and agrees not to enforce any and all moral rights, to the extent permitted under applicable law.
(b) Pre-Existing Materials. Advertiser acknowledges and agrees that all pre-existing materials, original works of authorship, developments, improvements, trade secrets, concepts, content, methodologies, know-how, processes, tools, and/or any other proprietary information or intellectual property rights owned by FieldTest or in which FieldTest has an interest that FieldTest used or controlled prior to the commencement of the Services, or which are otherwise independently developed by FieldTest, its affiliated companies, or contractors not in connection with or part of the Services, and all enhancements, modifications and improvements thereto (collectively, “Pre-Existing Materials”), are and remain the sole and exclusive property of FieldTest. Subject to Advertiser’s payment in full of all amounts owed under the applicable SOW or IO, FieldTest hereby grants a royalty-free, perpetual, non-exclusive, non-transferable, non-sublicensable license to Advertiser to use the Pre-Existing Materials to the extent integrated into the Deliverables, and solely for the benefit of Advertiser. Advertiser may not reverse engineer, decompile, modify, create derivative works, or otherwise exploit Pre-Existing Materials alone or apart from the applicable Deliverable.
(c) Third-Party Materials. Notwithstanding anything to the contrary, to the extent Third-Party Materials or rights are incorporated into any Deliverable (“Third-Party Materials”), the applicable third party retains ownership of such Third-Party Materials. All Third-Party Materials will be licensed, purchased or otherwise procured at Advertiser’s expense, and Advertiser agrees to use such Third-Party Materials in accordance with all restrictions and/or use limitations provided in writing by FieldTest to Advertiser. Further, Advertiser will receive under the third-party license only such rights and warranties that are actually provided by such third-party licensor, and as such, Advertiser acknowledges and agrees that FieldTest’s representations, warranties and indemnification obligations in the Agreement will not apply to such Third-Party Materials.
(d) Advertiser Property. FieldTest will not acquire any rights of ownership in any material provided by or on behalf of Advertiser to FieldTest in connection with the Agreement (“Advertiser Property”). Advertiser hereby grants FieldTest, its affiliates, and contractors the right and license to use such Advertiser Property in connection with providing the Services.
(e) Preliminary Materials. Any materials or concepts prepared or proposed by FieldTest, but not produced, created, finalized, or published during the term of the applicable SOW or IO, and any materials or concepts prepared or proposed by FieldTest and rejected by Advertiser, are and will remain the property of FieldTest (“Preliminary Materials”). As such, FieldTest will have the exclusive right to use the Preliminary Materials in its sole discretion provided that such uses do not involve Advertiser’s Confidential Information.
3. Compensation
(a) Fees. Advertiser agrees to pay FieldTest the fees for the Services set forth in each applicable SOW or IO (collectively, “Fees”). All Fees and other amounts paid to FieldTest will be exclusive of all taxes. Advertiser will be liable for all sales, use, or other taxes in connection with the Agreement, except for taxes on FieldTest’s net income.
(b) Expenses. Advertiser agrees to reimburse FieldTest for all reasonable out-of-pocket costs and expenses incurred on behalf of Advertiser in connection with performing the Services (“Expenses”). FieldTest may incur such expenditures upon receipt of Advertiser’s written approval (email or online approval acceptable). In the event circumstances require that FieldTest act upon Advertiser’s oral approval, FieldTest will confirm such oral approval in writing as soon as possible (email acceptable). In addition, Advertiser is responsible for paying in advance the expenses that are specified in any SOW, IO, or approved estimate as being payable in advance (such as content licenses or production expenses) (“Advanced Charges”). FieldTest will not be required to use its own funds to pay Advanced Charges, and is not responsible for any delay associated with Advertiser’s failure to pay for the Advanced Charges by the due date, or prior to the date the Expenses will be incurred.
(c) Media Buying. If FieldTest is purchasing media on behalf of Advertiser, the estimated media expenditure will be provided in a SOW or IO (“Media Expenditures”), which requires Advertiser’s prior approval (email or online approval acceptable). Advertiser acknowledges that the Media Expenditure may vary from the approved estimate, and Advertiser agrees to pay for Media Expenditures that are up to 10% in excess of FieldTest's estimate. If actual the Media Expenditure varies by more than 10% of the last estimate approved by Advertiser, FieldTest will send Advertiser a revised estimate for approval (email or online approval acceptable). Advertiser acknowledges that many media vendors such as Facebook, Google, TikTok, Snapchat, and Yahoo! operate under on non-negotiable standard advertising terms and conditions, and as such, Advertiser acknowledges and agrees that such terms and conditions will apply to all media purchased with such vendors. Unless otherwise set forth in the applicable SOW or IO, all Media Expenditures are payable in advance prior to delivery of the media, or a credit card can be provided to pay for the Media Expenditures as incurred, if that feature is available.
(d) Payment. All Fees, Expenses, Media Expenditures, and other amounts owed to FieldTest are due and payable within 30 days after Advertiser’s receipt of invoice, except for Advanced Charges or unless otherwise provided in the applicable SOW or IO. Late payments not disputed in good faith may be assessed a late fee of 1.0% per month, or the maximum rate permitted by law. Advertiser agrees to reimburse FieldTest for all expenses (including reasonable attorneys’ fees and costs) incurred in the collection of any past due invoices not disputed in good faith. To the extent that Advertiser disputes any invoice, Advertiser must provide FieldTest notice of such dispute in writing within 30 days of invoice receipt, or Advertiser will waive any claim with respect to such invoice.
4. Term; Termination; Effects of Termination.
(a) Term. The term of the Agreement begins on the Effective Date and continues until terminated as set forth herein (“Term”).
(b) Termination. Either Party may terminate the Agreement as follows: (i) for any or no reason upon 30 days prior written notice; (ii) for a material breach by the other Party upon ten (10) days written notice, provided that the breaching Party may cure such breach during the ten (10) day period; or (iii) immediately upon written notice if the other Party ceases to do business, has a trustee or receiver appointed for its assets, or an order for relief is entered regarding its assets under applicable bankruptcy law. With respect to any termination pursuant to Sections 4(b)(i) or 4(b)(ii), all terms and conditions of the Agreement will survive through the end of the applicable SOW or IO term.
(c) Effect of Termination. Any termination of the Agreement will not affect any right or claim that a Party incurred or accrued prior to the effective date of termination. Upon termination of the Agreement, Advertiser will: (i) pay or reimburse FieldTest for all Expenses, Advanced Charges, Media Expenditures, fees and other amounts incurred or irrevocably committed, or penalty fees for early cancellation of third-party services contracted by FieldTest in performing the Services; and (ii) pay the Fees for the Services as set forth in the applicable SOW and/or IO through the effective date of termination. Upon the termination of the Agreement, provided that Advertiser is current on all invoices, FieldTest will transfer, assign and make available to Advertiser, or Advertiser's representative, all property and materials in FieldTest's possession or control belonging to Advertiser, including any Advertiser Property or Deliverables. All definitions, Sections 2, 3 (for accrued but unpaid Fees, Expenses, Advanced Charges, and Media Expenditures), and 5 through 17, and any SOW and/or IO (as set forth in Section 4(b), above) will survive any termination of the Agreement.
5. Confidentiality. “Confidential Information” means information disclosed or made available by or on behalf of one Party to the other Party in writing, orally, or by inspection of tangible objects marked as “Confidential,” “Proprietary,” or some similar designation, or would under the circumstances appear to a reasonable receiving Party to be confidential or proprietary. Confidential Information may also include information disclosed to a disclosing Party by third parties. Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party through no fault of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. The receiving Party will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing Party, except to employees, contractors, agents, or affiliates, in each case who have a legitimate need to know such Confidential Information, and are bound to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, or (b) use, reproduce, or copy any Confidential Information of the disclosing Party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving Party by or on behalf of the disclosing Party, or in connection with, or as set forth in the Agreement. The receiving Party may disclose Confidential Information of the disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing by such subpoena, court order, or other legal process) prior to such disclosure, and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further, that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in the Agreement, (x) without consent, either Party may disclose the Agreement (or the existence of the Agreement) to bona fide potential investors or prospective purchasers of a portion of or all of its assets or beneficial ownership interests, provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, and/or as required by law, including any governmental or regulatory filings, (y) FieldTest may use data and information gathered or received by FieldTest in connection with providing the Services, including campaign performance data, engagement, and statistics/performance metrics, to compile anonymous and aggregated statistics for media planning purposes, and to enhance and optimize campaigns for Advertiser and other FieldTest advertisers, and for marketing, promotional, and analytics purposes. For the avoidance of doubt, except for campaign data and information used for or on behalf of Advertiser, this data will not include any identifiable data about Advertiser, its intellectual property or Confidential Information.
6. Representations.
(a) By FieldTest. FieldTest represents, warrants, and covenants that: (i) it has the right and authority to enter into the Agreement; (ii) it will comply with all applicable United States federal and state laws, and governmental regulations (collectively, “Laws”); and (iii) the Services set forth in the SOW and/or IO will be performed in a professional and workmanlike manner that are generally applicable to the nature and conduct of FieldTest’s business. Notwithstanding the foregoing or anything to the contrary in the Agreement, (x) FieldTest is not responsible for ensuring, and does not guarantee that any Deliverable or Service complies with Laws or guidelines specific to Advertiser’s products, services and industry, which Advertiser acknowledges and agrees will be its sole responsibility, and (y) Advertiser acknowledges and agrees that FieldTest is not responsible for conducting trademark, patent, clearance, or registration services in connection with the Deliverables or Services.
(b) By Advertiser. Advertiser represents, warrants, and covenants that: (i) it has the right and authority to enter into the Agreement, (ii) it is responsible for the accuracy, completeness and propriety of information concerning its products and/or services; and (iii) all Advertiser Property, and any other content, materials, marks, trademarks, service marks, logos provided by or on behalf of Advertiser will not infringe, misappropriate, or violate the rights of any third party or entity, including rights of publicity and/or privacy. Advertiser will review all materials prepared by or on behalf of FieldTest in connection with the Agreement promptly to confirm that all statements, claims, representations, and descriptions, whether express or implied, with respect to Advertiser’s products, services and/or competitors are accurate, complete, and supportable by Advertiser, and in compliance with all applicable Laws.
7. Indemnity.
(a) Advertiser Indemnity. Advertiser will indemnify, defend and hold harmless FieldTest and its affiliates, and their respective officers, directors, consultants, contractors, agents, attorneys, and employees, third-party service providers, and Distribution Network Entities (collectively, “FieldTest Indemnitees”) from all third-party claims, whether actual or alleged, to the extent arising from or in connection with the following (collectively, “Advertiser Claims”): (i) Advertiser’s breach of the Agreement, including its obligations, representations, and warranties; (ii) any ads, materials, or other forms of communication approved prior to release by or on behalf of Advertiser; (iii) any infringement or misappropriation of any United States copyright, trademark, trade name, right of privacy or publicity, or trade secret by the content, information, statements, and materials provided by or on behalf Advertiser; (iv) Advertiser’s products and/or services; (v) Advertiser's sale and/or provisioning of its products and/or services; (vi) acts by FieldTest taken with Advertiser’s approval, except if any such Advertiser Claim results from an action or a failure to act by FieldTest that constitutes gross negligence or intentional misconduct of FieldTest; (vii) any Deliverable modified by or on behalf of an Advertiser Indemnitee (defined below) without FieldTest’s prior written approval, and/or combined with other content, materials, or information after delivery by FieldTest; and/or (viii) any litigation, proceeding, and/or investigation of the products, services, acts and/or practices of Advertiser including any costs or expenses related to compliance with any third-party subpoena or other discovery request. Advertiser is solely responsible for defending all Advertiser Claims against each FieldTest Indemnitee, subject to such FieldTest Indemnitee’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from the Advertiser Claims against a FieldTest Indemnitee, provided that Advertiser will not agree to any settlement that imposes any obligation or liability on a FieldTest Indemnitee without its prior written consent. For purposes herein, “Distribution Network Entity” means any media vendor, media publisher, and/or third party distributing Advertiser’s ads and/or content through the Distribution Network, and “Distribution Network” means the network of advertising channels, including all forms of media, applications, and devices, through which Advertiser’ ads and/or content are distributed, regardless of whether the display is through a computer, connected device, proprietary platform, mobile device, or tablet.
(b) FieldTest Indemnity. FieldTest will defend, indemnify and hold harmless Advertiser and its affiliates, and their respective officers, directors, consultants, contractors, agents, attorneys, and employees (collectively, “Advertiser Indemnitees”), from all third-party claims, whether actual or alleged, to the extent arising from or in connection with the following (collectively, “FieldTest Claims”): (i) FieldTest’s breach of the Agreement, including its obligations, representations and warranties; (ii) any infringement or misappropriation of any United States copyright, trademark, trade name, right of privacy or publicity, or trade secret by an unmodified Deliverable as provided by FieldTest (provided the Deliverable is used as intended by the Parties based on a reasonable interpretation of the applicable SOW or IO, and without modification or combination with other materials or information after delivery by FieldTest); (iii) FieldTest’s failure to pay any third-party vendor or Distribution Network Entity after FieldTest has been paid such amount by Advertiser; (iv) FieldTest’s failure to comply with all applicable Laws (excluding any Advertiser Specific Laws); and/or (iv) FieldTest’s gross negligence or willful misconduct in performing the Services under the Agreement. FieldTest is solely responsible for defending all FieldTest Claims against each Advertiser Indemnitee, subject to such Advertiser Indemnitee’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from the FieldTest Claims against an Advertiser Indemnitee, provided that FieldTest will not agree to any settlement that imposes any obligation or liability on an Advertiser Indemnitee without its prior written consent.
8. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, (a) THE SERVICES, DELIVERABLES, AND ADVERTISER PROPERTY ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND (b) THE PARTIES DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. FIELDTEST FURTHER MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, AND PROVIDES NO INDEMNITY WITH RESPECT TO ANY THIRD-PARTY MATERIALS OTHER THAN AS MAY BE PASSED THROUGH TO ADVERTISER (AND THEREFORE PROVIDED BY SUCH THIRD PARTY AND NOT FIELDTEST) WHEN OBTAINING SUCH RIGHTS FROM THE APPLICABLE THIRD PARTY, OR ANY OTHER MATERIALS OUTSIDE OF FIELDTEST'S REASONABLE CONTROL.
9. Limitation of Liability.
(a) EXCEPT FOR SECTION 3, ABOVE, (FOR ACCRUED BUT UNPAID FEES, EXPENSES, ADVANCE CHARGES, MEDIA EXPENDITURES, AND OTHER AMOUNTS OWED TO FIELDTEST), LIABILITY ARISING FROM BREACH OF SECTION 5 (CONFIDENTIALITY), ABOVE, AND/OR THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) ANY LIABILITY OF THE ADVERTISER INDEMNITEES AND THE FIELDTEST INDEMNITEES IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY ADVERTISER PURSUANT TO THE AGREEMENT IN THE THREE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM(S), AND (b) IN ADDITION TO ANY OTHER LIMITATION IN THE AGREEMENT, NEITHER THE ADVERTISER INDEMNITEES NOR THE FIELDTEST INDEMNITEES ARE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, GOODWILL, LOSS OF DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT.
(b) ADVERTISER ACKNOWLEDGES AND AGREES THAT FIELDTEST HAS NO CONTROL OVER ADS, CONTENT, INFORMATION, OR DELIVERABLES ONCE PUBLISHED, RELEASED, OR POSTED IN THE PUBLIC AS REQUESTED OR APPROVED BY ADVERTISER, AND AS A RESULT, CANNOT ENSURE THE ACCURACY OF WHAT ANY DISTRIBUTION NETWORK ENTITY OR ANY OTHER THIRD PARTY PUBLISHES, RELEASES, OR POSTS. THEREFORE, ADVERTISER WILL NOT HOLD FIELDTEST RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY DISTRIBUTION NETWORK ENTITY OR OTHER THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO DISTRIBUTION OF ADVERTISER’S ADS, CONTENT, AND/OR DELIVERABLES, CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON ADVERTISER’S ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY, OR ANY USER GENERATED CONTENT RESPONDING TO ANY AD, CONTENT, AND/OR DELIVERABLE.
10. Statute of Limitation/Time to File an Action. ADVERTISER ACKNOWLEDGES AND AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, NO CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT REGARDLESS OF FORM MAY BE FILED MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (A) THE TERMINATION OR EXPIRATION OF THE AGREEMENT, OR (B) THE EVENT GIVING RISE TO SUCH CLAIM OR CAUSE OF ACTION, OR BE FOREVER BARRED.
11. Non-Solicitation. During the Term and for one (1) year thereafter, neither Party will, except in connection with the Agreement, directly or indirectly, recruit, solicit, hire, or engage any employee of the other Party without such Party’s written consent. Notwithstanding the foregoing, a Party may utilize general solicitations or advertisements for employment (including the use of a recruiting agency) not specifically targeted at the other Party’s employees. If, in violation of this Section, the breaching Party hires the non-breaching Party’s employee, or otherwise causes the non-breaching Party’s employee to resign from employment by the non-breaching Party, the non-breaching Party will be entitled to receive from the breaching Party, as liquidated damages (and not as a penalty), an amount equal to (a) 50% of the total yearly compensation (including base, bonus and incentive compensation) paid or owed by the non-breaching Party to such employee for the last full calendar year of employment (or pro-rated if such employee did not work the entire prior calendar year), and (b) the non-breaching Party’s reasonable attorneys’ fees in connection with a breach of this Section. The Parties agree that the liquidated damages set forth in this Section are a reasonable estimate of the cost of replacing the lost employee, and therefore is not a penalty.
12. Notices. Notices pursuant to the Agreement must be in writing, sent by personal delivery, certified mail, return receipt requested, or recognized overnight courier (e.g., FedEx or UPS), and will be deemed given on the date received when addressed as follows:
If to Advertiser: to the person set forth in the SOW or IO at the address specified therin
If to FieldTest: FieldTest, Inc. Attn; Chief Legal Officer 2118 Wilshire Blvd., #275 Santa Monica, CA 90403
Notwithstanding the foregoing, the Parties may obtain approvals, and provide other routine day-to-day communications and notices (excluding legal notices regarding termination, breach, or indemnity) that are required to be in writing via email or through FieldTest’s online platform.
13. Choice of Law; Venue. The terms of the Agreement and any dispute relating thereto or between the Parties will be governed by the laws of the State of California, without regard to conflict/choice of law principles. The Parties agree to submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California.
14. Assignment. Neither Party may assign the Agreement without the prior written consent of the other Party, except upon written notice in connection with the reorganization, reincorporation, merger or sale of all or substantially all of the assigning Party’s assets or stock.
15. Agent; Independent Contractor Status. With respect to negotiating and purchasing media, goods and/or services on Advertiser’s behalf, FieldTest will have the right to act as an agent for Advertiser, its disclosed principal, provided the expenditure for such purchase was approved by Advertiser in accordance with the Agreement. Except for the foregoing, the Parties are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between the Parties.
16. Miscellaneous. The Agreement constitutes the entire agreement and understanding between the Parties regarding the subject matter contained herein, and supersedes all other agreements, proposals, representations, claims, and communications, written and oral, regarding the subject matter contained herein (including any additional, different, or conflicting terms on any of Advertiser’s forms, emails, or papers). No terms or conditions other than those set forth in the Agreement will be binding on the Parties unless expressly agreed to by the Parties in writing. Without limiting the foregoing, in no event will any purchase order terms, click wrap, or other electronically accepted agreement (excluding any electronic signature of the Agreement) constitute a license or binding agreement on FieldTest, including even if FieldTest accepts such terms. Notwithstanding the forgoing or anything to the contrary in the Agreement, Advertiser acknowledges and agrees that use of FieldTest’s online platform, including certain products or services available on or through such platform may be subject to click wrap or other electronically accepted terms and conditions. Only a written instrument specifically waiving compliance that is executed by whichever Party is entitled to waive such compliance may waive any term and/or condition of the Agreement. No waiver by a Party of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect. Except for Advertiser’s payment obligations, neither Party will have any liability under the Agreement by reason of any failure or delay in the performance of a Party’s obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet, network and/or electrical outages, computer viruses, cyber-attacks, pandemics (including COVID-19), endemics, acts of God, war, governmental action, malicious acts of a third party, or any cause that is beyond a Party’s reasonable control. Except as expressly set forth herein, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, Advertiser acknowledges and agrees that the FieldTest Indemnitees and Advertiser Indemnitees are third-party beneficiaries to the Agreement and will be entitled to directly enforce, and rely upon, any provision in the Agreement which confers a benefit on, or rights in favor of, them. Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Advertiser with respect to or relating to the Services or any Deliverable, may be used by FieldTest without compensation or attribution, and in connection therewith, Advertiser grants the FieldTest a perpetual, irrevocable, fully paid-up, unrestricted right and license to use any or all of the foregoing. Any rights not expressly granted in the Agreement are reserved by Advertiser or FieldTest, as applicable, and all implied licenses are disclaimed. As used in the Agreement, the word “herein” means the Agreement, “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will”, “shall”, and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. Finally, FieldTest may include Advertiser’s name and other indicia in promotional materials and press releases, including on FieldTest’s website, upon Advertiser’s written approval (email acceptable).
17. Electronic Signatures Effective. a. By clicking on the “I Agree” or similar check-box/button, Advertiser creates an electronic signature to the Agreement, establishing a valid and binding contract. Therefore, Advertiser agrees to accept these terms and conditions and any other agreement contained or referenced herein. In addition, Advertiser agrees that FieldTest may supply it with a copy of the Agreement in electronic form. Advertiser should print or save a copy of the Agreement for its records. Advertiser also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a written request to FieldTest at the address set forth in Section 12, above. b. Advertiser may choose to withdraw its consent to receive the Agreement in electronic form. Withdrawing consent to receive the Agreement in electronic form does not change Advertiser's existing obligations under the Agreement. Instead, withdrawing consent means that Advertiser wishes to have its relationship with FieldTest governed by a non-electronic form of the Agreement. If Advertiser wishes to withdraw its consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to FieldTest at the address set forth in Section 12, above. FieldTest then will send Advertiser a non-electronic form of the Agreement. Advertiser's withdrawal of consent will become effective when FieldTest mails to Advertiser a copy of the non-electronic form of Agreement, at which point the Parties relationship will be governed by the terms of such Agreement. In either instance, the obligations that Advertiser incurs pursuant to the electronic form of the Agreement, prior to the effective date of Advertiser's withdrawal of consent, will remain unchanged until they are fully satisfied by Advertiser. c. In order to access and retain the electronic Agreement, Advertiser must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, Advertiser must use all equipment necessary to make such connection to the Internet (e.g., a computer or other access device). FieldTest will notify Advertiser of any material changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that Advertiser will not be able to continue to access and/or retain the electronic Agreement.
[End of Services Agreement]