Services Agreement

THIS SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF MFour Mobile Research, Inc. (“MFour”) SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A TRIAL OF MFour SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT TRIAL. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, OR (3) USING TRIAL SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on February 15, 2023. It is effective between Customer and MFour as of the date of Customer accepting this Agreement.

1. Services. Subject to the terms and conditions of this Agreement, MFour will provide services to Customer that may consist of one or more of (i) MFour Consumers’ (as defined below) survey projects, resulting data files and analysis, and reports pertaining to survey projects (“Survey Services”); (ii) a Consumer Explorer License providing access to and use of the MFour Studio Platform (“MFour Studio Platform”); (iii) Consumer Data (as defined below); and/or (iv) other services and deliverables ((i) through (iv) above are together “Services”) as mutually agreed upon in one or more Statements of Work and/or Order Form(s) (referred collectively herein as an “Order”) describing the Services to be provided, including project scope and timing, project activities and tasks, roles and responsibilities of the Parties, fees/payments/expenses, and the particular and Customer-specific reporting, survey, or analysis output (“Deliverable(s)”) to be delivered in connection with the Services. Unless otherwise directed by Customer, MFour shall perform under the terms of the then-current Order until any new revisions are agreed to in writing by both Parties. Accordingly, the Parties acknowledge that upon mutual agreement, the Customer and MFour may execute a new Order that alters or changes the requirements of any prior Order. The Parties also acknowledge and agree that (a) each Order shall be deemed to incorporate the terms and conditions of this Agreement, (b) the terms and conditions of this Agreement shall prevail over any inconsistent terms and conditions set forth in any Order, and (c) the termination of this Agreement shall terminate all outstanding Orders.
2. Fees; Taxes; Late Payment. Customer will make payment to MFour for all fees specified in an Order (the “Fees”), other than those being disputed in good faith, per the payment terms stated in an Order. If Customer wishes to dispute the payment of any Fees, Customer must notify MFour in writing within the thirty (30) day period and upon receipt of such notice the Parties shall work together in good faith, and in a timely manner to resolve the dispute. All Fees are exclusive of all taxes and similar levies now in force or enacted in the future imposed on the delivery by MFour to Customer of the Services and Deliverables, all of which Customer will be responsible for and will pay in full, except for taxes based on MFour’s net income. In the event any amount owed by Customer is not paid when due, and such failure is not fully cured within ten (10) days of the due date, then (i) in addition to any other amount due, MFour may impose, and Customer will pay, a late payment charge on the overdue amount at a rate equal to the lower of (a) one and one-half percent (1½%) per month, or (b) the highest rate permitted by applicable law; and (ii) MFour at its option may suspend Services and/or hold Deliverables until past due amounts are paid.
3. Free Trial. If Customer registers on MFour’s website or through other means for a free trial, MFour will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s) (the “Trial Period”), or (b) termination by MFour in its sole discretion. If Customer does not cancel the trial during the Trial Period, Customer will be charged the Fees agreed to by Customer when Customer registered for the trial.  Customer may cancel the Service(s) at any time after the Trial Period and Customer will not be charged any Fees after Customer cancels.  Any Fees paid or invoiced prior to cancellation will not be refunded. Additional trial terms and conditions may be part of the trial registration process.  Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
4. Term and Termination. This Agreement shall continue in effect unless earlier terminated by either Party as provided for below (the “Term”). Either Party shall have the earlier right to terminate this Agreement as follows: 
   • 4.1 Upon written notice from one Party to the other Party if the other Party breaches or fails to observe or perform any term or condition of the Agreement and does not cure such breach or failure within thirty (30) days after receipt of written demand for cure.
   • 4.2. Upon written notice to the other Party if the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization.
   • 4.3. By either Party for any reason or no reason upon no less than thirty (30) days prior written notice to the other Party, except that MFour may not terminate this Agreement pursuant to this Section 4.3 at any time it is providing Services and Deliverables under an Order, and any such termination by Customer under this Section 4.3 will not take effect until the end of the Order Term for each of the Services under an Order.
   • 4.4. If this Agreement is terminated for any reason whatsoever, Customer shall immediately pay MFour all Fees due and payable (in accordance with applicable Order(s), for any portion of the Services or Deliverables completed, provided, or in process as of the effective date of termination and upon complete payment by Customer of any such Fees, MFour shall provide Customer with any completed or work-in-process Deliverables. If this Agreement is terminated by Customer pursuant to Section 4.1 or 4.2 (only), MFour shall refund to Customer any prepaid amounts for Services not performed as of the effective date of termination.
5. Cooperation. Customer acknowledges and agrees that successful implementation of a Service may require Customer’s reasonable and timely cooperation, including, without limitation, registering with MFour online to establish an account or assisting MFour with the registration and establishment of accounts with its end users that will utilize the Services (each a “End User(s)”).
6. Platform Access. Access and use of the MFour Platform (when provided as a part of the Services specified in an Order) may be subject to additional online terms, guidelines, or policies. Customer (and its End User(s)) further agrees to accept, be bound by, and abide by MFour’s platform access terms (“Terms of Use”) (as MFour may revise from time to time), a current copy of which is available for review at https://mfour.com/terms-of-use/
7. Ownership, Licenses, and Work Product. 
   • 7.1. Ownership.
     • 7.1.1. MFour Consumer Panel. As between MFour and Customer, MFour shall solely own all rights, title, and interests in its consumer panel (the “MFour Consumers”), and any and all information related to MFour Consumers and provided by MFour to Customer, including, but not limited to (i) profile data such as gender, age, geographic area, ethnicity, income level, marital status, etc.; (ii) GPS location, location tracking, location history and other similar data; (iii) device and application data collected from a MFour Consumer’s mobile device such as device manufacturer and model, wireless carrier, operating system, installed applications, application usage, in app and browser goods and services purchase history; and (iv) any and all other data of MFour Consumers (collectively, “Consumer Data”). Notwithstanding the foregoing, MFour Consumer Data shall not include the particular data, survey questionnaires, or responses specifically prepared for and provided to MFour by Customer or on behalf of its advertisers or Customers (“Customer Provided Data”).
   
   
   • • 7.1.2. Services and Deliverables for Survey Services. Specific Deliverables provided by MFour to Customer resulting directly from Survey Services (excluding any MFour Intellectual Property (defined below) embodied therein), the “Work Product”) shall, upon full payment by Customer of all Fees, be the sole and exclusive property of Customer, and MFour shall have no right to use the Work Product except to provide the Services and Deliverables. MFour agrees that the Work Product shall be works made for hire to the extent permitted by applicable law, and that Customer shall retain all intellectual property rights in and to the Work Product. In the event that any of the Work Product does not qualify as works made for hire, MFour hereby assigns to Customer upon full payment by Customer of all Fees all of MFour’s rights to such Work Product and all of MFour’s intellectual property rights embodied therein and associated therewith. For the sake of clarity, Work Product shall only result from Survey Services and shall not result from any other Services or Deliverables unless specifically stated in an Order.
   
   
   • • 7.1.3. MFour Intellectual Property. MFour reserves all rights not expressly granted to Customer herein. Specifically, and without limitation of this general reservation, MFour shall at all times retain and own all rights title, and interests in the MFour Studio Platform, and any process, invention, tool, improvement, development, software, technology, intellectual property, software, technology, business processes, and research methodologies owned or licensed by MFour or used by MFour to provide the Services or Deliverables, or perform any of its obligations under this Agreement or an Order, including derivatives, modifications, enhancements, or improvements to the foregoing (“MFour Intellectual Property”).
   
   
   • • 7.1.4. Customer Provided Data. As between the Parties, Customer shall at all times solely own and retain all rights in and to the Customer Provided Data.
   
   
   • • 7.2. Licenses.
     To the extent that MFour Intellectual Property is included in Work Product and subject to the payment of the applicable Fee, MFour hereby grants to Customer a nonexclusive, worldwide right and license to continue to use the fully embedded or integrated MFour Intellectual Property only to the extent necessary to use or maintain Work Product for Customer’s internal business purposes and solely as used in such Work Product and not as a “stand-alone” product or separately from such Work Product in which it is embedded or integrated. To the extent the Services provide access to or the Deliverables include Consumer Data, and so long as Customer has made payment of the applicable Fee, MFour hereby grants to Customer a nonexclusive, worldwide right and license to use such Consumer Data solely for (i)  selecting Consumers for Survey Projects (to be provided by MFour); (ii) internal analytical and market research purposes; and (iii) only if used in the aggregate and a de-identified basis for consumer insight products, including syndicated data and reports (“Consumer Insight Products”) (items (i), (ii), and (iii) shall collectively be “Permitted Uses”), and for no other purposes. Without limiting the generality of the foregoing, Permitted Uses shall specifically exclude (A) reverse-engineering the Consumer Data or in any way attempting to identify any MFour Consumer; (B) directly or indirectly contacting a MFour Consumer by email or otherwise, including sending any materials or information to a MFour Consumer by any form of communications (digital or otherwise), including but not limited to, targeted or other advertising, marketing, and those promoting a product or service; and (C) reselling, leasing, renting, sublicensing, sharing, or distributing Consumer Data to any third party except in the form of a Consumer Insight Product.
8. Confidentiality.
   • 8.1. Scope. “Confidential Information” of a Party shall mean any non-public or confidential information or data (in or on any media now known or hereinafter developed) disclosed during the term of this Agreement by a Party (each a “Disclosing Party”) to the other Party (each a “Receiving Party”) relating in any way to the Disclosing Party’s products, processes, pricing, operating procedures, programs, plans, finances, costs, operations, or customers that is either labeled or identified as “Confidential” or “Proprietary,” or is reasonably understood to be the confidential or proprietary information of the Disclosing Party. Without limitation of the foregoing, the Confidential Information shall be expressly understood to mean and include Customer’s claimed inventions and patent applications, and nonpublic or confidential aspects of the Services, including the MFour Platform(s) or Consumer Data. Notwithstanding the foregoing, Confidential Information shall not include information which the Receiving Party can prove: (a) are or become a part of the public domain through no fault of the Receiving Party; (b) are received from a third party in good faith where said Party is not obligated to the Disclosing Party to keep said information confidential; (c) were in the other’s possession, as evidenced by written or other tangible evidence, prior to receipt from the Receiving Party; or (d) is disclosed in response to a requirement under law.
     8.2. Confidentiality Obligation.  The Receiving Party will maintain any and all Confidential information in strict confidence using no less than reasonable effort, and in a manner consistent with the approach employed by the Receiving Party for its own confidential information of a similar nature in order to prevent such Confidential Information from being disclosed or made available to any unauthorized person or entity. In addition, any right to use Confidential Information shall be limited strictly to each Party’s respective rights or as necessary for each Party to fulfill such Party’s respective responsibilities under this Agreement.
9. Insurance. With respect to MFour’s performance under this Agreement of the Services, MFour shall maintain the following insurance with coverage for not less than the following amounts, or if greater, the amounts required by applicable law: (a) Commercial General Liability: $1,000,000, per occurrence; $2,000,000, annual aggregate; (b) Commercial Automobile Liability: $1,000,000 combined single limit per occurrence; (c) Excess Liability: $1,000,000 umbrella form combined single limit per occurrence; (d) Worker’s Compensation: State and federal: statutory; employer’s liability: $1,000,000; and (e) Professional Errors & Omissions:  $5,000,000 per occurrence and combined aggregate.
10. Representations and Warranties.
    • 10.1. MFour Representations and Warranties. MFour covenants that (i) it shall comply with all applicable privacy and data protection laws or other laws, rules, and regulations governing its provision of the Services, including, but not limited to those that apply to the use, privacy, and storage of any Consumer Data (collectively the “Laws and Regulations”); (ii) shall maintain a privacy policy for the performance of the Services and MFour’s receipt, processing, or storage of the Consumer Data, or any Customer Provided Data that complies with all applicable Laws and Regulations; (iii) it will perform the Services in a professional and workmanlike manner and in accordance with this Agreement and any Order issued hereunder; (iv) it has obtained any and all necessary permits, licenses, or required third-party consents or approvals necessary in connection with providing the Services and Deliverables; and (v) it has all rights necessary to provide or make available the Services and Deliverables, including the MFour Platform, in accordance with this Agreement.
    • 10.2. Customer Representations and Warranties. Customer covenants that (i) it shall comply with all applicable Laws and Regulations governing its performance under this Agreement, including the provision to MFour for use hereunder any Customer Provided Data; (ii) it has obtained any and all permits, licenses, consumer, and other third party consents or approvals necessary in connection with Customer Provided Data for MFour to provide the Services or Deliverables; and (iii) Customer has all rights necessary to provide or make available the Customer Provided Data in accordance with this Agreement.
    • 10.3. Mutual Representations and Warranties. MFour and Customer each represent that (a) each such Party has the right, power, and authority to enter into this Agreement and perform all of its respective obligations hereunder; (b) each such Party and its signatory to this Agreement has the authority and has been duly authorized to execute this Agreement; and (c) each such Party’s execution, delivery, and performance of this Agreement does not and will not violate any agreements between such Party and any other Party. EXCEPT FOR THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MFour expressly disclaims all OTHER warranties, either express or implied, including, WITHOUT LIMITATION, any warranties OF INTERFERENCE WITH ENJOYMENT OF INFORMATION, NON-INFRINGEMENT, merchantability, QUALITY, OR fitness for a particular purpose. MOREOVER, CUSTOMER ACKNOWLEDGES AND AGREES THAT MFOUR DOES NOT WARRANT THAT THE SERVICES, MFOUR PLATFORM(S), OR CONSUMER DATA WILL OPERATE OR BE AVAILABLE ON ERROR-FREE OR UNINTERRUPTED BASIS.
11. Indemnification.
    • 11.1. MFour Indemnification. MFour shall, subject to the terms herein, defend, indemnify and hold harmless Customer, its affiliates, parent and related companies, subsidiaries, licensees, Customers, successors and assigns, and each of their respective officers, directors, employees, representatives, and agents, against and from any and all claims, liabilities, demands, lawsuits, actions, losses, deficiencies, judgments, damages, fines, penalties or costs of whatsoever nature, including reasonable attorneys’ fees and costs, (collectively a “Claim”) arising from, by reason of, or in connection with MFour’s breach of its covenants or representations under this Agreement.
    • 11.2.Customer Indemnification. Customer shall defend, indemnify and hold harmless MFour, its affiliates, parent and related companies, subsidiaries, licensees, Customers, successors and assigns, and each of their respective officers, directors, employees, representatives, and agents, against and from any Claim arising from, by any reason of, or in connection with Customer’s breach of its covenants or representations under this Agreement.
12. Miscellaneous.
    • 12.1. LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) ARISING OUT OF THIS AGREEMENT AND WHETHER OR NOT FORESEEABLE AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, MFOUR’S AGGREGATE LIABILITY FOR ANY CLAIMS, DAMAGES, OR LIABILITY ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, OR MFOUR’S PERFORMANCE UNDER OR FULFILLMENT OF ANY DUTIES OR OBLIGATIONS PER THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE INCIDENT OUT OF WHICH THE LIABILITY AROSE.
    • 12.2. Notices. With the exception of a termination notice that must be in writing and sent in accordance with this Section, all other notices and other communications in connection with this Agreement shall be sent by confirmed receipt email to Customer at the physical address or email address included in an Order or to MFour at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612 or to finance@mfour.com, or to such other address(es) as may be designated by a Party in writing from time to time in accordance with this Section. Notices and other communications in writing may be sent by registered or certified mail, postage prepaid, or by express courier service, service fee prepaid. All written notices shall be deemed received (a) immediately upon delivery, if hand-delivered, (b) five business days after posting, if delivered by mail, or (c) the next business day after delivery by express courier service, if delivered by express courier service. In addition to the foregoing, MFour may provide Customer with information about the MFour Platform(s) in electronic form, i.e., via an email address that Customer provides or through a website that MFour identifies. Notice in electronic form will be deemed given as of the date of transmission.
    • 12.3. Relationship of Parties. Notwithstanding anything to the contrary herein, the Parties to this Agreement are independent contractors and under no circumstances shall any of the employees of one Party be deemed to be employees of the other Party for any purpose.
    • 12.4. Governing Law and Venue. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of California without regard to choice-of-law(s) principles. Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in Los Angeles County, State of California for purposes of any lawsuit seeking to enforce this Agreement. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce.
    • 12.5. Dispute Resolution. Prior to either Party commencing any litigation arising out of the performance of this Agreement, the Parties agree to appoint a representative to meet by phone or in person for the purpose of endeavoring to resolve in good faith any disputes between them. If a dispute has not been settled after thirty (30) days of good-faith negotiation, then either Party may commence litigation against the other. All such remaining claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration using an arbitrator selected by MFour in its sole discretion. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of such arbitration proceeding shall be binding on the Parties. Nothing herein, however, shall preclude a Party from seeking at any time emergency injunctive relief in the event of an action or omission by the other Party that is likely to cause irreparable harm to it in the reasonable opinion of the Party seeking the emergency remedy. In any action or proceeding to enforce, interpret, or determine the applicability or enforceability of any provision of, this Agreement, or for monetary or other relief as a result of the alleged breach of this Agreement, or otherwise arising from or under this Agreement, the prevailing Party shall be entitled to recover from the other Party its attorneys’ fees and costs incurred in prosecuting or defending such action or proceeding.
    • 12.6. Litigation Claims. The following claims (“Litigation Claims”) shall be litigated between the Parties and not arbitrated: (a) claims against a Party to this Agreement under the provisions involving claims by third parties; (b) claims by a Party for the unauthorized use, or misuse, by the other Party of the first Party’s intellectual property or confidential, proprietary, or sensitive information; (c) claims by MFour to collect fees; and (d) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.
    • 12.7. Injunctive Relief. The Parties agree that any breach of either Party’s obligations regarding the other Party’s Confidential Information or intellectual property or non-solicitation would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a Party’s obligations of the foregoing without the necessity of showing any actual damage or posting a bond, the aggrieved Party will be entitled to seek injunctive relief, in addition to any other remedies to which it may be entitled.
    • 12.8. Non-Assignability. Customer may not assign, transfer, or delegate this Agreement (including, without limitation, by operation of law, merger, or change of control) without MFour’s prior written consent, and any such assignment (or transaction) in violation with this provision is void. All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors, and assigns.
    • 12.9. Force Majeure. Except for obligations to make payment hereunder, neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by events or conditions beyond that Party’s reasonable control, including without limitation, acts of God, any governmental body, or failure of software or equipment of third parties.
    • 12.10. Severability & Waiver. If any part of this Agreement is held to be unenforceable by a court of competent jurisdiction, the unenforceable part shall be given effect to the greatest extent possible, and the remainder shall remain in full force and effect. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement. Failure to insist on strict compliance with the terms and conditions of this Agreement shall not be considered a waiver of such terms and conditions, which either Party may enforce at a later time.
    • 12.11. Survival. Sections 2 (for any remaining Fees due), 7.1, 7.2, 8 (for a period of four (4) years), 11 (for a period of two (2) years), and 12 shall survive termination or expiration of this Agreement.
    • 12.12. Entire Agreement. This Agreement (including each associated Order and the Terms of Use) constitutes the entire agreement between Customer and MFour with respect to the subject matter hereof, and supersedes all prior agreements, proposals, representations, claims, or communications, whether written or oral, regarding the subject matter contained herein. Unless otherwise agreed to herein, no modification of this Agreement shall be binding unless in writing and signed by Customer and MFour. In the event of any conflict between or among this Agreement, an Order, or the Terms of Use, this Agreement shall control, then the Order, and then the Terms of Use.