TERMS OF SERVICE FOR INTELLECTUAL PROPERTY ACQUISITIONS

These TERMS OF SERVICE FOR INTELLECTUAL PROPERTY ACQUISITIONS (this “Agreement”) govern the provision of Services (as defined below) provided by MARKSMEN, INC. (“Marksmen”), a Delaware corporation with an address at 111 N. Maryland Avenue, Glendale, CA 91206, USA, and the person or entity set forth in the Order (as defined below) (“Client”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SUBMITTING ANY ORDER (AS DEFINED BELOW), AS THIS AGREEMENT CONTAINS IMPORTANT INFORMATION ABOUT LIMITATIONS OF LIABILITY AND RESOLUTION OF DISPUTES THROUGH ARBITRATION RATHER THAN IN COURT. IF CLIENT DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLIENT’S ONLY RECOURSE IS TO NOT SUBMIT AN ORDER.

1.              Services

(a)            Order Process.  In order to engage Marksmen to provide acquisition services pursuant to the terms of this Agreement, Client must submit an order through Marksmen (the “Order”).  Each such Order shall contain complete and accurate information as requested by Marksmen.

(b)           Acceptance of Order.  Marksmen may reject any Order in its discretion.  Within 2 business days of Client’s submission of an Order, Marksmen will notify Client using the contact information provided at the time Client submitted the Order whether Marksmen accepts or rejects the Order in whole or part.  Marksmen may reject an Order for any reason, including a determination of a low probability of success in Marksmen’s sole discretion.

(c)            Description of Services.  If Marksmen accepts Client’s Order, Client hereby engages Marksmen as its exclusive agent to perform all of the services described on an Order (“Services”). In connection with its provision of the Services, Marksmen agrees to act in good faith and to comply with all reasonable and lawful instructions of Client

(d)           Agent.  Client acknowledges and agrees that (i) Marksmen, as Client’s exclusive agent for the provision of the Services, has the express authority to act on Client’s behalf as authorized by Client.

2.              Confidentiality.  Marksmen agrees to use commercially reasonable efforts to maintain the confidentiality of the identity of Client in all discussions, negotiations, and transactions with any third-party relating to the Services. Client and Marksmen acknowledge that they may have access to and become acquainted with Confidential Information of each other Client and Marksmen each agrees to maintain as confidential and not disclose any Confidential Information of the other..  Notwithstanding the forgoing, Client may disclose Confidential Information to its employees and agents, including attorneys, accountants, and financial advisors who have a need to know in connection with the Services, as ordered by a court of competent jurisdiction, as required by any regulatory agency, or as otherwise required by applicable federal, state, or local law.  However, promptly upon receipt of notice of an obligation to disclose any Confidential Information as provided in this paragraph, Client shall give Marksmen written notice of the obligation to disclose, and shall reasonably cooperate with Marksmen, at Marksmen’s expense, in Marksmen’s efforts to obtain a protective order, or otherwise prevent or limit the disclose of Confidential Information.  “Confidential Information” means all non-public, confidential or proprietary information disclosed by Marksmen to Client, including, without limitation, Marksmen’s proprietary methods and information used when performing the Services, including but not limited to pretext identities, confidential third-party knowledge, certain beneficial partnerships, and other intelligence not publically known.

3.              Compensation.  In consideration of the Services, Client shall pay Marksmen the fees set forth in each Order (the “Service Fees”). In addition to the Service Fees, Client shall reimburse Marksmen for its reasonable out-of-pocket expenses, as and when incurred and pre-approved by Client.

4.              Representations, Warranties and Covenants.  Client represents, warrants and covenants to Marksmen that: (a) it has a bona fide, good faith intention to acquire the intellectual property listed in the Order; (b) it is not engaging, and will not engage, Marksmen to provide Services for the purposes of investigating ownership status, gathering evidence for the purpose of legal action or to otherwise for any unlawful purpose; (c) it will respond to communications from Marksmen in a timely manner (d) it will provide complete, accurate and current information to Marksmen and maintain and promptly update all such information to keep it complete, accurate and current; (d) it is not a restricted party or barred from receiving services under the laws of the United States or other applicable jurisdiction; and (e) the person submitting the Order on behalf of Client (i) is of legal capacity to form a binding contract, and (ii) has the authority to bind Client to the terms of this Agreement.

5.              DISCLAIMER OF WARRANTIES.EXCEPT AS OTHERWISE SET FORTH HEREIN, MARKSMEN PROVIDES THE SERVICES “AS IS,” AND MARKSMEN DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

6.              Indemnification

(a)            By Marksmen.  Marksmen will indemnify, defend and hold harmless Client, its directors, officers, partners, employees, representatives and agents from and against any and all assessments, costs, damages, deficiencies, expenses (including reasonable attorneys’ fees), injuries, judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred from any actions, causes of action, claims, demands, proceedings or suits (“Claims”) asserted by any third parties against Client to the extent arising from or connected with (i) Marksmen’s breach of this Agreement; or (ii) Marksmen’s gross negligence or willful misconduct in connection with Marksmen’s performance of Services under this Agreement.

(b)           By Client.  Client will indemnify, defend and hold harmless Marksmen, its directors, officers, partners, employees, representatives and agents from and against any and all Liabilities incurred from any Claims asserted by any third parties against Marksmen to the extent arising from or connected with (i) Marksmen’s performance of the Services hereunder, except to the extent such Liabilities are directly caused by Marksmen’s gross negligence or willful misconduct; (ii) Client’s breach of this Agreement; (iii) any of Client’s activities with respect to the Domain Name(s); or (iv) any untrue statement contained in any written or oral communication provided by or on behalf of Client in connection with the Services or subject matter of this Agreement.

(c)            Procedure.  A party seeking indemnification hereunder (the “Indemnified Party”) shall provide the other party (the “Indemnifying Party”) with: (a) prompt written notice of any claim subject to indemnification; provided, however, that the Indemnifying Party shall not be relieved of any indemnification obligation hereunder except to the extent it is materially prejudiced as a result of the Indemnified Party’s failure to provide prompt written notice; and (b) reasonable assistance to defend or settle such claim at the Indemnifying Party’s expense.  The Indemnifying Party shall have sole control of the defense and all related settlement negotiations of such claim provided that the Indemnifying Party shall not agree to any settlement or compromise that results in any admission on the part of the Indemnified Party, or imposes any obligation or liability on the Indemnified Party, without the Indemnified Party’s prior written consent.  The Indemnified Party shall have the right to participate in the defense and settlement negotiations of such claim through its own counsel at its own expense.

7.              LIMITATION OF LIABILITY.  TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW, MARKSMEN’S LIABILITY UNDER OR RELATING TO THIS AGREEMENT OR ANY ACQUISITION AGREEMENT SHALL IN NO EVENT EXCEED IN THE AGGREGATE AN AMOUNT EQUIVALENT TO THE SERVICES FEES ACTUALLY RECEIVED BY MARKSMEN UNDER THIS AGREEMENT. EXCEPT FOR ANY INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER RESULTING, IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.              Termination.  Client may terminate this Agreement at any time, for any reason, by delivering 10 days’ notice to Marksmen.  Marksmen may terminate this Agreement upon notice to Client if (a) Client breaches any provision of this Agreement and fails to cure such breach within 15 days of notice from Marksmen, or (b) Marksmen determines in its reasonable discretion that it will not be able to achieve the acquisition of any of the intellectual property specified in the Order.  Upon termination of this Agreement for any reason, Client will promptly pay to Marksmen any amounts due to Marksmen hereunder. All provisions of this Agreement which by their nature are intended to survive the termination or expiration of this Agreement shall survive such termination or expiration.

9.              Assignment.  Neither party may assign this Agreement or delegate its performance under this Agreement to any third party without obtaining the other party’s prior consent, except that either party may assign this Agreement in its entirety to (a) its affiliate, or (b) any successor entity in the event of such party’s transfer of all or substantially all of its assets or stock, merger, spin-off, consolidation, reorganization or other business combination or change of control, so long as the assigning party provides notice thereof to the other party.  Any purported assignment of rights in violation of this Section is void.  This Agreement shall be binding upon and inure to the benefit of the permitted successors and permitted assigns of the parties.

10.           Governing Law; Arbitration.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California.   Client agrees to give Marksmen an opportunity to resolve any disputes or claims relating in any way to the Services by contacting Marksmen at notice@marksmen.com. If Marksmen is not able to resolve Client’s Claims within 60 days, Client may seek relief through arbitration or in small claims court, as set forth below.  All Claims related to this Agreement will be resolved by binding arbitration, rather than in court, except Client may assert Claims on an individual basis in small claims court if they qualify. This includes any Claims Client assert against Marksmen, its affiliates, its and their respective officers, directors, employees, agents, subcontractors and representatives (collectively, “Representatives”).  This also includes any Claims that arose before Client accepted this Agreement, regardless of whether prior versions of this Agreement required arbitration.  There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce this Agreement as a court would.  Arbitrations will be conducted by the American Arbitration Association (“AAA”) under its then-current rules. The AAA’s rules are available at www.adr.org.  Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Any and all proceedings to resolve Claims will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a Claim proceeds in court rather than in arbitration, Marksmen and Client each waive any right to a jury trial, except if prohibited by applicable law. The Federal Arbitration Act and federal arbitration law apply to this Agreement.  An arbitration decision may be confirmed by any court with competent jurisdiction.

11.           Modifications to Agreement.  Marksmen reserves the right, at its sole discretion, to change, modify or otherwise alter this Agreement at any time. Such changes and/or modifications shall become effective immediately upon the posting thereof and Marksmen will be under no obligation to provide Client notice of any such changes or modifications by any other means. Client’s continued submission of Orders or receipt of Services following the posting of changes and/or modifications will constitute Client’s acceptance of the revised terms and conditions.

12.           Miscellaneous.  Notices under this Agreement must be sent in writing or by email to the address set forth above for Marksmen (or by email to Marksmen at notice@marksmen.com or as set forth on the Order for Client or to such other address as a party has notified the other in writing.  In the event that Marksmen commences any Claim against Client in connection with this Agreement and Marksmen is the prevailing party, then, in addition to any other relief to which Marksmen may be entitled, Client shall promptly pay all of Marksmen’s expenses, including reasonable attorneys’ fees and costs, in connection with such Claim.  This Agreement sets forth the entire understanding between the parties, supersedes any and all existing agreements between them, and may be modified only by a written instrument duly signed by each party.  If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not).  If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. Marksmen’s failure or delay in enforcing any provision of this Agreement at any time does not waive its right to enforce the same or any other provision(s) hereof in the future. Client agree that no joint venture, partnership, or employment relationship exists between Client and Marksmen as a result of this Agreement. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial, arbitration or any other administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This Agreement constitutes the entire agreement between Client and Marksmen with respect to Marksmen’s provision of the Services, superseding any prior agreements between Client and Marksmen with respect to the Services. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. As used in this Agreement, “include” or “including” means including without limiting the generality of any description preceding such term.  The section titles in the Agreement are for convenience only and have no legal or contractual effect.  Any rights not expressly granted herein are reserved.