1. Scope.
This Agreement controls the Advertiser’s purchase of “Data Files” from the Company. The conditions, quantities, and other specifics of each Data File purchase shall be agreed to in an Order or Ticket, which is deemed an integral part of this Agreement. The terms of this Agreement shall govern each Order or Ticket. In the event of any discrepancy between the terms of this Agreement and an Order or Ticket, the terms of this Agreement shall control. As used herein, “Data Files” shall mean the data record for an individual (whether or not any such individual becomes an actual customer of Advertiser or its client(s)), which has been compiled by multiple third-party sources.
2. Payment.
Advertiser shall pay the Company the applicable rates and fees (collectively, the “Fee”) for the Data File, as established in each applicable Order or Ticket. All applicable fees set forth in an Order or Ticket shall be paid by the Advertiser in advance of its receipt of any of the applicable Data Files. Advertiser will provide the Company with valid credit card or ACH information. By providing a credit card or ACH information, the Advertiser authorizes the Company to charge such credit card or bank account for the Fee. All sales are final and non-refundable except as expressly provided in an applicable Order or Ticket.
3. Acknowledgement; Disclaimer.
a. Compliance with Applicable Law. By accessing and using any Data File, Advertiser, on its behalf and that of its affiliates or subsidiaries (each, a “User”), represents and warrants that its use of any and all Data Files will be in strict compliance with all applicable Company guidelines, as well as all applicable local, state, national, federal and international laws, rules and regulations including, but not limited to, the Gramm-Leach Bliley Act of 1999 (15 U.S.C. §§ 6801 et seq.) and the Federal Trade Commission’s Safeguards Rule (16 CFR Part 314), the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (the “TCPA”), the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and laws governing the National Do-Not-Call Registry, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), the HIPAA Privacy Rule, the HIPAA Security Rule, and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”). Without limiting the foregoing, each User represents and warrants that, where such User intends to conduct any telemarketing activities in connection with any Data File, it has the legal authority to download information from the National Do Not Call Registry (“NDNCR”) using a Subscription Authorization Number (“SAN”).
b. Disclaimers. Each User acknowledges that the Company utilizes multiple third-party sources and collection methods in its Data File compilation processes. The third-party sources are solely responsible for the content, accuracy, completeness, appropriateness, and/or validity of the Data Files and the legality associated with their collection and dissemination. Company does not represent or warrant that the Data Files and/or other information made available by and through the Data Files is accurate, complete, or appropriate or that such Data Files were collected in compliance with Applicable Law. The company makes no representation or warranty that the Data Files are collected in a manner that satisfies any applicable legal requirements for use in any specific manner or are fit for any particular purpose. Users should consult with their own legal counsel before initiating any online or offline marketing campaign utilizing the Data Files. Without limiting the foregoing, each User hereby expressly acknowledges and agrees that, in the event that any consumer information contained in any Data File provided by the Company includes telephone numbers, each User acknowledges and agrees that the Company makes no claim that any such consumer information was collected from consumers who have provided “prior express written consent” as required under the TCPA and/or Do Not Call List requirements and any applicable rules, regulations or guidelines. As a result, the Company does not make any claim, representation, or assertion that User, or any third party, may: (i) call any landline or mobile phone numbers contained within any Data File, without first scrubbing against the NDNCR; and/or (ii) call any landline or mobile phone numbers contained within any Data File through the use of an automatic telephone dialing system or pre-recorded or artificial voice message or text message without first separately obtaining “prior express written consent” from each such consumer that comprises the subject Data File (each, a “Consumer”), as required under the TCPA. Each User hereby expressly acknowledges and agrees that in the event that any Consumer information contained in any Data File provided by the Company includes e-mail addresses, such consumer information WAS NOT collected from consumers who have “affirmative consent” as required under CAN-SPAM. As a result, the Company does not make any claim, representation, or assertion that User, or any third party, may send commercial e-mail messages to any e-mail addresses contained within any Data File, without first separately obtaining affirmative consent from each such subject Consumer, as required under CAN-SPAM.
4. Term and Termination.
This Agreement shall be in effect as of the Effective Date and shall remain in effect until all purchases set forth in the Order or Ticket are fulfilled and completed or until such time as either Party terminates the Order or Ticket upon thirty (30) days written notice. In the event that Advertiser terminates this Agreement or an Order or Ticket other than for cause due to the Company’s material breach, Advertiser shall pay all costs and service charges incurred through the effective date of termination, including any future non-cancellable commitments. Advertiser’s obligation for payment under this section shall be in addition to and not in lieu of any other remedies the Company may have under applicable law.
5. Data.
Advertiser hereby acknowledges and specifically agrees that Company shall retain all right, title and interest in and to any and all Data Files delivered by Company to Advertiser under this Agreement. Company hereby grants to Advertiser, for the duration of this Agreement, a non-exclusive, non-transferable, limited license to use any Data File delivered pursuant to this Agreement and any other Order or Ticket for purposes of contacting and soliciting such potential consumers about the Advertiser’s products, services and/or other offerings only. Advertiser acknowledges and agrees that Data Files are non- exclusive and may be sold by Company to other customers at any time.
6. Confidentiality.
Each Party may be given access to the other Party’s Confidential Information during the course of this Agreement. As used herein, “Confidential Information” shall mean any information shared under this Agreement, whether or not such information is disclosed as confidential either orally or in writing, including without limitation: the terms of this Agreement; any customer, vendor, or financial information; any marketing plans, services, or data; or any information that by its nature would reasonably be understood to be confidential. Notwithstanding the foregoing, Confidential Information shall not be considered any of the following: (i) information that becomes generally known to the public through no act or failure to act by receiving Party; (ii) information that was known by the receiving Party before receiving such information; (iii) information that is hereafter rightfully obtained by the receiving Party from a third party without breach of any obligation to the disclosing Party; (iv) information that is independently developed by the receiving Party without use of or reference to the Confidential Information by persons who had no access to the Confidential Information; or (v) data which is not owned by the disclosing Party. Using at least the same degree of care for its own confidential and proprietary information but in any event no less than a commercially reasonable standard of care, the receiving Party shall have a duty to safeguard, keep confidential and secure, and prevent unauthorized use and disclosure of all Confidential Information it receives from disclosing Party hereunder. Accepting trade secrets, which shall be held confidential for an indefinite period of time or until such trade secret becomes public knowledge through no act or failure to act of the receiving Party, the receiving Party shall safeguard all Confidential Information as required hereunder for a period of five (5) years from the date and time of disclosure. Receiving Party may disclose the Confidential Information to those staff, advisors, and vendors who need to know such Confidential Information as is reasonably necessary for the receiving Party to carry out its duties hereunder; provided that all such Parties are under an obligation of confidentiality at least as restrictive as that set forth herein. The receiving Party may also disclose the Confidential Information as required under applicable law or judicial or administrative order, provided that the disclosing Party is notified with a reasonable time for the disclosing Party, at its own expense, to make its own objections and protective orders. Except to the extent that Confidential Information is required for services continuing hereunder, at any time, a disclosing Party may request in writing, and the receiving Party shall promptly comply, that the receiving Party return and destroy any or all of the disclosing Party’s Confidential Information held hereunder.
7. Indemnification.
In addition to any of Advertiser’s indemnification obligations described in other sections of this Agreement, Advertiser shall fully indemnify, defend, and hold harmless the Company for any and all claims, actions, causes of action, demands, losses, liabilities, costs, damages, and expenses including, but not limited to, attorneys’ fees and associated costs of any nature whatsoever asserted against, resulting to, imposed upon, or incurred by the Company or its directors, officers, contractors or consultants, successors, and assigns, directly or indirectly, by reason of, resulting from, or attributable to Advertiser’s or any User’s products, services, marketing or advertising claims, breach of any applicable law, use or misuse of any Data File, negligent act or omission, or breach of any of Advertiser’s representations, duties, obligations, covenants, or agreements contained herein.
8. Limitation of Liability.
Notwithstanding any indemnification obligations hereunder, neither Party shall be liable to the other for (i) incidental, special punitive, indirect, or consequential damages of any kind, including lost profits, lost data, lost revenues, loss of business opportunity, or harm to reputation or brand, whether or not either Party was aware or should have been aware of the possibility of such damages; or (ii) a total aggregate liability hereunder, if any, exceeding the amounts paid or payable hereunder in the three (3) months immediately-preceding the circumstance which gave rise to the claim. The limitations under this section shall not apply to any indemnification or confidentiality provisions hereunder.
9. Disclaimer of Guarantees and Warranties.
Except as otherwise explicitly stated herein, the services and deliverables, including Data Files, are sold “as is,” and the Company makes no other warranties (express or implied) with respect to the performance of its services or deliverables, including without limitation, any guarantee for performance or specific action or result, or implied warranties of merchantability and fitness for a particular purpose. Company shall not be liable for any unavailability of services or deliverables for reasons beyond the Company’s reasonable control.
10. Non-Circumvention.
Advertiser hereby acknowledges that Company maintains direct contractual relationships with certain third-party companies who sell goods or other services to the Company for Company’s use in the provision of the services to Advertiser (“Vendors”). The Advertiser further acknowledges that the Company has invested considerable resources and intellectual property in the establishment of its direct contractual relationships with the Vendors and that the Company would suffer harm if the Advertiser were to circumvent the Company and contract directly or indirectly with the Vendors. Therefore, the Advertiser hereby agrees that during the term of this agreement and any agreement currently binding the Parties, and for a period of two (2) years following termination of this Agreement, the Advertiser shall not knowingly, nor shall it knowingly permit any third party acting on its behalf to, directly or indirectly, in any manner solicit or purchase any Data Files from any Vendor who provided Data Files to Company in connection with this Agreement. Such permission shall not be unreasonably withheld in the event that the Advertiser knowingly: (a) had a direct contractual relationship with the Vendor in question that was current and valid as of the Effective Date, and (b) was actively purchasing and trafficking advertising from the Vendor in question during the three (3) months prior to the Effective Date of this Agreement. If a Vendor used by the Company for the Advertiser approaches the Advertiser in order to circumvent the Company, the Advertiser agrees that it shall notify the Company of such actions within a reasonable time period.
11. Miscellaneous.
a. Non-Solicitation. For the term of this Agreement and for one (1) year thereafter, Advertiser shall not, without the prior written consent of Company, directly solicit for employment any person employed by Company.
b. Survival. All the terms of this Agreement that reasonably may be interpreted as surviving termination of this Agreement shall survive the termination of this Agreement. Without limiting the foregoing, the following sections shall specifically survive the termination of this Agreement: 3, 5, 6, 7, 8, 9, 10 and 11.
c. Governing Law and Jurisdiction. Any suit, action, or proceeding seeking to enforce any provision of or matter arising out of this Agreement shall be brought exclusively in the state or federal courts of Clark County, Nevada, and each of the Parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any suit, action or proceeding. This Agreement shall be construed in accordance with and governed by the laws of the State of Nevada.
d. Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
e. Successors and Assigns. Neither Party may assign this Agreement, in whole nor in part, without the other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may automatically assign its rights and obligations hereunder to; (a) any corporation or entity resulting from any merger, consolidation, or other reorganization of such Party; (b) any individual or entity to which such Party may transfer substantially all of the assets and business of such Party; or (c) any entity that controls, is controlled by, or is under common control with such Party, or of which such Party beneficially owns at least fifty percent (50%) of the equity interest therein. All the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and permitted assigns.
f. Force Majeure. Neither Party is subject to, and neither Party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control (“Force Majeure Event”). Notwithstanding the foregoing, the Advertiser shall not be relieved of its obligation to make timely payments of any amounts due under this Agreement or an Order or Ticket due to a Force Majeure Event.
g. Independent Contractors. The relationship between the Company and Advertiser established by this Agreement is that of an independent contractor, and each shall conduct its respective business at its own initiative, responsibility, and expense. This Agreement will not be construed to create any partnership, joint venture, agency or employment relationship between Company and Advertiser. Furthermore, the Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations.
h. Waiver and Remedies. No term or provision hereof shall be deemed waived, and no breach excused unless such waiver shall be in writing and signed by the Party claimed to have waived or consented. No course of dealing or failure of either Party to strictly enforce any term, right, or condition of this Agreement shall be construed as a waiver of such term, right, or condition. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
i. Entire Agreement and Headings. This Agreement, including the Order or Ticket, shall constitute the entire Agreement between the Parties with respect to the subject matter of this Agreement and supersede all existing oral and contemporaneous or written contracts or agreements between the Parties. Headings are provided for convenience purposes and shall not be used to construe or interpret the terms of this Agreement.
