“File” shall mean an electronic record containing data that pertains to a particular individual (the “Consumer”), which meets each of the requirements set forth in this agreement.
“Opt In Data” where permission has been actively given by a consumer to receive emails.
“Double Opt In Data” where the consumer must also confirm his/her permission usually by replying to a confirmation email.
Files provided by List Owner
- Each File provided by List Owner must have been and will be collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act or practice and will be in compliance with the CAN-SPAM act of 2003.
- List Owner Represents and Warrants that the Consumers have consented to receiving commercial emails from List Owner, and such consent includes the right to transfer the Data to a List Manager for the use contemplated by this agreement. In addition List Owner shall maintain records evidencing such consent including, with limitation, applicable IP addresses, URL of the source website where consumer communicated consent and/or time/date stamps and will supply such records to List Manager as provide herein.
- Each File provided by List Owner will either be Opt In Data or Double Opt In Data.
List Managers Right to use Files
- List Owner hereby grants and List Manager hereby accepts a non-exclusive, non-transferable, revocable worldwide license to manage, make use and have access to the Data pursuant to the terms and conditions set forth in this Agreement.
- Lists Manager reserves the complete and absolute right, in its sole discretion, to determine all matters relating to the Delivery, including but not limited to; the date on which delivery is made; the number of files to which delivery is made; Files that will receive Delivery.
- List Manager Represents and Warrants that
- the execution, delivery and performance by List Manager of this Agreement will not violate ay applicable law, statute or governmental regulation.
- Except as may be required by law or necessary to prove compliance with laws, List Manager will not sell, rent, lease, license, exchange and/or otherwise transfer the Data or any email address contained in any suppression list(s).
- List Manager will provide Consumers with a clear and concise method of choosing not to receive future commercial email messages (“Unsubscribe”) from List Manager on every email message sent to the Files.
- List Manager may permit a third party mailing service providers to possess the Files, provided that List Manager requires each entity to which List Manager permits access to the Files to maintain the security and confidentiality of the Files, and to return or destroy the Files after use.
- List Manager shall not be liable or responsible for any issue arising from the Data or the manner in which it was collected.
The initial term (“Initial Term”) of the Agreement shall be sixty (60) days and shall commence of the Effective Date. Thereafter, the Agreement shall automatically renew for consecutive thirty (30) day periods unless otherwise terminated pursuant to the provisions of this agreement.
Either party may terminate this Agreement for any reason by providing not less than forty-eight (48) hours notice to the other party.
Upon termination of this Agreement, whether for breach or otherwise, the following shall occur
- List Owner shall cease providing Data to List Manager
- List Manager shall immediately cease all sending of emails to Data
- List Manager shall pay List Owner all sums due and owing, if any, within forty five (45) days of the effective date of termination; and
- Unless otherwise provided herein, List Manager shall promptly return to List Owner all Files or in the alternative destroy the Data.
- List Manager will provide List Owner with a report (“Revenue Report”) which will include all the revenues that List Manager expects to collect which are attributable to List Owners Files. List Manager agrees to pay List Owner Royalties 50% of net revenue based on this Revenue Report.
- Payment will be made thirty (30) days after the end of the calendar month. Payment to List Owner is contingent upon List Manager receiving payment.
- Lists Owner acknowledges and agrees that Revenue Report may be based, in whole or in part, on data and reports provided to List Manager by Third Parties ( the “Statistics”) and the List Manager shall not disclosed pursuant to judicial order, requirement or request of a government monetary damages for breach of these restrictive covenants may not be adequate and that the non-breaching party shall be further entitled to injunctive relief.
Representations and Warranties
Each party hereto represents and warrants that it has all the necessary power and authority to enter into this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- List Owner’s Indemnity Obligations. List Owner agrees to indemnify and hold List Manager harmless from and against any and all claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys’ fees, arising from or related to (i) a breach of List Owner’s obligations under this Agreement, including the representations and warranties contained herein, and (ii) any claim that provision of the Data violates any law, statute or regulation, or any rights of any third party, including but not limited to the CAN-Spam Act of 2003, and acts amendatory thereto.
- List Manager’s Indemnity Obligations. List Manager agrees to indemnify and hold List Owner harmless from and against any and all claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys’ fees, arising from or related to (i) a breach of List Manager’s obligations under this Agreement, including the representations and warranties contained herein, (ii) any claim that the List Manager Technology infringes upon any rights of a third party, and (iii) any allegation that List Manager or its Customer or other agents violated any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including but not limited to the CAN-Spam Act of 2003, and acts amendatory thereto.
- Indemnity Procedures. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
- Limitation of Liability. Excluding the Parties’ obligations under Section 10 which result in actual, out-of-pocket expenses and/or costs to the Indemnified Party, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages. Any cause of action arising from or in connection with this Agreement shall be asserted within one (1) year of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later.
The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
Neither party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to payment obligations) as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition(s) to the other party.
Relationship of the Parties.
The Parties to the Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either party.
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.
This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein. Neither party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by such party in any correspondence or other document, unless the party to be bound specifically agrees to such provision(s) in writing.
No change, amendment, or modification of any provision of the Agreement will be valid unless set forth in a written instrument signed by the Parties.
Successors & Assigns
List Owner shall not assign this Agreement and any rights or obligations hereunder without the express written approval of List Manager, which approval shall not be unreasonably withheld. Any transfer of control of substantially all of the assets or business of the List Owner to a third party by sale, merger, or otherwise shall be deemed to be an assignment for purposes of this section. List Manager may assign this agreement and its rights and obligations hereunder to a parent, sister, subsidiary or any other business entity that purchases or acquires all or any portion of List Manager’s stock. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the permitted assigns of the parties hereto.
The captions and headings used in the Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of any state without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Delaware for such purpose. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.