Version Date: July 13, 2018
1. LICENSES AND RESTRICTIONS
During the performance of the Company Services, Customer may provide Company with certain data points (“Customer Data”), such as customer email addresses, and Company may then provide to Customer additional data points that augment the Customer Data, or other data points for prospects that are similar to the customers contained in the Customer Data (the “Supplementary Data”). Other than the limited licenses granted in this Agreement, Customer (and its licensors) retains all rights in the Customer Data and Company (and its licensors) retains all rights in the Company Services and Supplemental Data.
Subject to all of the terms and conditions herein, Company hereby grants to Customer a non-exclusive, nontransferable, non-assignable, non-sub-licensable license during the term of this Agreement and any Order to use the Supplementary Data solely for Customer’s internal business purposes. Customer shall not transfer the Supplementary Data to third parties, except for service providers and contractors that are bound by confidentiality and use restrictions that prohibit the further disclosure of such data to third parties and prohibit the use of such data for any purpose other than for the benefit of Customer within the license rights granted in this Agreement.
Customer shall use the Supplemental Data strictly in accordance with the terms of this Agreement and shall not: (a) violate any applicable laws, rules or regulations in connection with access or use of the Supplementary Data; (b) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the Supplementary Data; (c) use the Supplementary Data for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the Company Services; or (d) use the Company Services on behalf of a third party or as a service bureau. If Company informs Customer that a specified activity or purpose is prohibited, Customer will immediately cease processing of the Supplementary Data for the prohibited activity or purpose.
Customer represents and warrants that the Customer Data does not violate any third-party rights, including any privacy rights, or any laws, regulations, or obligations imposed by any third party. Customer hereby grants, and Customer represents and warrants that Customer has the right to grant, to Company a nonexclusive, non-transferable, and royalty-free license to use the Customer Data as necessary for the performance of the Company Services on Customer’s behalf and for Company’s internal analytical analysis purposes. Customer represents that Customer has all rights (including consents and licenses) needed for Customer to grant Company the license to use the Customer Data as described in this Agreement. Upon a termination of this Agreement, Company shall not retain any of the Customer Data. Upon request, Customer shall provide Company with the necessary credentials for Company to access and download Customer Data, such as access to Customer’s CRM system, and Customer represents that Customer has proper authority for Company to utilize such credentials for such purpose.
Customer represents and warrants that Customer will use the Company Services in strict compliance with all laws and regulations, including, without limitation, laws regulating marketing, advertising, security, and privacy, such as the Telephone Consumer Protection Act (including the Telemarketing Sales Rule and “Do Not Call” regulations), the Federal Trade Commission Act, the CAN-SPAM Act of 2003, and all other related federal and state laws and regulations.
Customer acknowledges and agrees that: (A) Supplementary Data has not been collected for, and is not intended to be indicative of, any person’s employability, credit worthiness, credit standing, credit capacity, or other characteristics related to such person’s manner or mode of living, as listed in Section 603(d) of the Fair Credit Reporting Act (“FCRA”), 15 USC Section 1681a; and (B) Customer shall not use any Supplementary Data as a factor in establishing any person’s eligibility for (1) credit or insurance used primarily for personal, family or household purposes, (2) employment purposes, or (3) other purposes authorized under Section 604 of the FCRA, 15 USC Section 1681b or any similar statute.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Company Services (or any part thereof) with or without notice. Customer agrees that Company shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Company Services. Should Company Services be suspended or discontinued, Company shall refund Customer any remaining prepaid service fees by delivering written notice of amounts due to Customer via mail or email and returning payment via check to Customer the billing contact of record, at the Customer address of record.
Customer may request, pursuant to an Order, that Company perform certain advertising campaign activities. As part of such activities, Company may set up accounts with social media channels, advertising channels, landing pages, and other services through which the campaigns will be conducted. These accounts will be owned by and set up in the name of Customer, and Company will provide Customer with the credentials for all such accounts. Customer authorizes Company to enter into agreements and/or to make transactions electronically on behalf of Customer, for the purpose of creating, promoting, advertising and managing Customer’s online digital content, creative content, landing pages and advertising campaigns in accordance with the campaigns agreed between the parties.
Charges for campaigns conducted under such accounts will be paid for by Customer via a Customer credit card or other method required by the service. Customer and Company will agree on the monthly or other target budget for such campaigns. The campaign spend includes charges from Data Management Platforms (DMPs), Demand-Side Platforms (DSPs), and advertising networks, which charges will be incorporated into the programmatic ad spend. Company will make reasonable efforts to keep campaigns within the set target budget. However, Customer acknowledges that Company cannot completely control such campaigns to ensure that the campaign spend may not upon occasion exceed the target budget agreed by Customer and Company, and Company shall not be responsible for any excess expense incurred.
3. FEES AND PAYMENTS
Fees for the Company Services are set forth in the applicable Order. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Company’s net income). In the event Company pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Company.
Fees are charged monthly in advance and Customer hereby authorizes Company to charge Customer’s payment method (e.g., credit card, ACH, etc.) each month without requiring authorization for each monthly charge. Under circumstances where Customer is invoiced, then payment is due within thirty (30) days of receipt of an invoice. For late payments, including where Customer’s payment method fails to make payment, then Company may apply an immediate charge equal to the greater of one percent (1%) of the amount due and $50. Thereafter, Company may impose a one and one-half percent (1 ½ %) per month charge until payment is made. Customer will be responsible for reimbursing Company for any costs incurred by Company collecting overdue fees, including bank charges, attorneys’ fees, collection agency fees and related costs. Unless otherwise agreed, all charges and payments shall be in U.S. dollars.
Customer shall reimburse Company for any pre-approved (in writing) expenses incurred by Company in the performance of the Company Services.
Credit card payments incur a 3% bank and processing fee.
Advertising spend incurs a 5% fee to cover operational and technical charges.
4. PROHIBITED ACTIVITIES
Customer may not use the Company Services for any other purpose other than that for which Company makes them available. Prohibited activity includes, but is not limited to:
Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Company Services provided by Customer to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of such information for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer.
The parties each acknowledge that the other party treats its products, development processes, business methods, business information, and prices as confidential and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.
During the term of this Agreement, each party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information (but in no event less than reasonable care). Each party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. Confidential Information may only be used by the receiving party for the purpose for which such Confidential Information was disclosed by the disclosing party. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when disclosed by the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party or (iv) was developed independently by the receiving party by individuals without access to the disclosing party’s information.
The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
The obligations of the parties with regard to the Confidential Information shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the term of this Agreement and for three (3) years thereafter.
The parties acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other party may be irreparable; therefore, the parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.
8. TERM AND TERMINATION; SUSPENSION
This Agreement shall remain in effect until terminated by either party by written notice at any time upon thirty (30) days prior notice. Additionally, either party may terminate this Agreement upon written notice if the other party commits a material breach which is not cured within five (5) days from written notice. If no Order is in effect under this Agreement for a period of more than one hundred eighty (180) days, this Agreement shall automatically terminate.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting Company’s other rights and remedies, Company may immediately, with written notice (email is sufficient) suspend Customer’s access to the Company Services.
Upon any termination, Customer shall pay any unpaid fees covering the Company Services rendered. In no event shall termination by Customer or Company relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to the Company Services shall be governed and construed by the law of the State of California, excluding such state’s conflicts of law rules. Any legal action of whatever nature arising out of or related in any respect to this Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over San Francisco, California; subject, however, to the right of Company, at the Company’s sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to Customer. The parties hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by either party related in any way to the Company Services be instituted more than two (2) years after the cause of action arose.
CUSTOMER AGREES THAT USE OF THE COMPANY SERVICES WILL BE AT CUSTOMER’S SOLE RISK AND THAT THE COMPANY SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE COMPANY SERVICES AND CUSTOMER’S USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE COMPANY SERVICES AND SUPPLEMENTARY DATA AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF SUPPLEMENTARY DATA, (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (C) ANY INTERRUPTION OR CESSATION OF THE COMPANY SERVICES, (D) FAILURE OF THE COMPANY SERVICES TO MEET CUSTOMER REQUIREMENTS OR SALES EXPECTATIONS, AND/OR (E) ANY ERRORS OR OMISSIONS OR VIRUSES IN ANY COMPANY SERVICES OR SUPPLEMENTARY DATA.
11. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM CUSTOMER’S USE OF THE COMPANY SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO CUSTOMER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE COMPANY SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.
12. DATA RETENTION
Although Company performs regular routine backups of data, Customer is primarily responsible for all data that Customer has transferred or that relates to any activity Customer has undertaken using the Company Services.
This Agreement constitutes the entire agreement between Customer and Company regarding the use of the Company Services. This Agreement may only be modified by written agreement of the parties. No text or information set forth on any other purchase order, preprinted form or document (other than a mutually executed Order) shall add to or vary the terms and conditions of this Agreement. No joint venture, partnership, employment, or agency relationship exists between Customer and Company as a result of this Agreement or use of the Company Services. The failure of either party to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement may not be assigned by Customer without Company’s express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company’s reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. Upon Company’s request, Customer will furnish Company any documentation, substantiation or releases necessary to verify Customer’s compliance with this Agreement. Notices sent pursuant to this Agreement will be deemed effective upon verifiable receipt. During the term of this Agreement, Company will be entitled to display Customer’s corporate name and logo on Company’s website and marketing materials and to identify Customer as a Company customer.
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