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DATA USAGE LICENSE AGREEMENT (v.12.01.16)
IMPORTANT - PLEASE READ THIS ENTIRE AGREEMENT. YOU ARE AGREEING TO ARBITRATE ALL CLAIMS AND NOT TO PARTICIPATE IN ANY CLASS ACTIONS. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT.
Dedicated Media Solutions ("Company") and the person or entity that consented to the terms of this agreement ("Licensee"), hereby agree as follows:
WHEREAS, Company and Licensee desire to enter into an agreement ("Agreement") whereby Company will provide Licensee with access to Company Data ("Leads") as (as defined below);
WHEREAS, Licensee will, subject to the terms and conditions set forth herein, use the Leads for marketing purposes. NOW THEREFORE, in consideration of the covenants, promises, and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Company Data License
1.1 During the Term hereof and subject to the other terms and conditions of this Agreement, Company grants to Licensee a non-transferable, revocable, limited license to use said Leads in the United States for the purpose of contacting a potential consumer no more than 1 time. A lead shall mean the contact information for a potential customer, which may include various data elements, contact information, and associated permission standards captured, generated, licensed, or owned by Company or its licensors and/or affiliates.
1.2 Leads are sold to the Client on either a semi-exclusive, or an exclusive basis, depending on the lead type. Semi-exclusive Leads are sold to a maximum of two (2) Clients within the first seven (7) days, never to more than one Client promoting the same business opportunity. Exclusive Leads are sold to a maximum of one Client in the initial thirty (30) days. Although the leads may be sold again at a later date, they would never be sold to a Client promoting the same business opportunity.
1.3 Replacement policy. Company provides 10% additional leads on most orders to replace invalid leads. An invalid lead will meet one or more of the following criteria: disconnected number/not in service, wrong number, fax machine, under age applicants, or if the prospect is non-English speaking. Please note, some lead types have their own specific over-riding return policies. If applicable, these will be clearly stated within the ordering process, and contained on your receipt.
1.4 Expiration Policy. Lead and Click orders must be used within ninety (90) days from the date of purchase, or they will expire. Refunds will not be offered for unused or expired orders. All orders using the 'Pause' functionality will also need to be used within 60 days of the order being placed.
2. Fees, Reporting, and Audits
2.1. Licensee shall pay Company a sum equal the total amount shown at checkout ("Company Fees"). Due to the nature of advertising, all sales are final. Under no circumstances shall Licensee be entitled to a refund. In all cases involving a failure of Company Data to conform to the express terms set forth in this Agreement, Company's sole obligation and Licensee's exclusive remedy, is for Company to provide conforming Company Data.
2.2. Licensee authorizes Company and its third-party billing-services provider to initiate debit/credit entries to the bank deposit account or credit card Licensee provided for the cost of all Company Data ordered per the monthly Auto-Ship order. An Auto-Ship order is an order that is automatically renewed on a monthly basis until cancelled. Upon each renewal, the Licensee will receive a new order of the same product and quantity originally purchased, which will be automatically billed to the current credit card on file. The renewal pricing charged to the Client will be based on the retail price at the time each renewal takes place, and may differ from the original purchase amount. Promotional quantities and/or pricing received during the initial purchase do not apply for future renewals.
2.3. If Licensee pays by credit card or demand debit, Licensee hereby make the following statement: "I hereby authorize Company and its third-party billing-services provider to initiate debit/credit entries to my bank deposit account or credit card in the amount shown in my Shopping Cart at time of checkout." Furthermore, Licensee agrees not to attempt to charge-back or dispute any amount paid to Company through Licensee's credit/debit card issuer or bank.
2.4. If Licensee's payment cannot be processed, the Auto-Ship Program may be suspended or terminated.
3. Licensee's Duties.
3.1. Licensee agrees to use Company Data in a manner that strictly complies with the terms of this Agreement and all applicable legal requirements. This includes without limitation the Telemarketing Sales Rule, CAN SPAM Act of 2003, and all other United States federal and state laws that regulate telemarketing and e-mail marketing, including marketing to minors, as well as the applicable laws of the jurisdictions in which Licensee uses the Company Data, laws that require encryption of personal information, laws that require the use of adequate or reasonable security precautions for personal information, and the applicable personal information import/export laws. The said laws shall collectively be hereinafter referred to as "Applicable Law."
4. Term and Termination
4.1. This Agreement shall remain in full force and effect until terminated by either party in a manner consistent with the terms and conditions set forth herein.
4.2. This Agreement may be immediately terminated by either party:
4.2.1. If either party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or is the subject of reorganization; or
4.2.2. In the event either party becomes subject to any bankruptcy or insolvency proceeding under federal, state or foreign statutes.
4.3. Upon termination of this Agreement by either party, all rights conferred upon Licensee hereby shall immediately terminate and Licensee shall immediately return to Company the Company Data and certify under oath to Company that no copies thereof exist.
5. Representations and Warranties
5.1. Each party represents and warrants to the other that it has full right and authority to enter into this Agreement and to perform all of its obligations hereunder; that its execution and performance of this Agreement will not breach any agreement between itself and a third party; and that the provisions of this Agreement are binding upon and enforceable against it except as may be limited by applicable United States bankruptcy laws and other laws affecting creditors rights.
5.2. Licensee represents and warrants that it will not engage in any deceptive or unlawful trade practice and that it will comply in all respects with all Applicable Law.
5.3. Without limiting its obligations regarding legal compliance, Licensee represents and warrants that Licensee assumes all responsibility for ensuring that any use of telephone numbers in the Company Data shall comply fully with all applicable law, including without limitation Do-Not-Call provisions of the Telephone Consumer Protection Act.
6.1. Company does not guarantee that the Company Data provided pursuant to the terms of this Agreement will generate revenue. Company does not guarantee that the individuals identified in the Company Data can be contacted or that the Company Data, or portions of it, are not otherwise available from another source separate from Company. Company makes no representation whatsoever regarding the suitability, creditworthiness, viability, or legitimacy of the individuals identified in the Company Data. Company exercises no control over, and accepts no responsibility for, the acts and/or omissions of the individuals identified in the Company Data. Company makes no representation regarding whether the use by Licensee or its customers of the Company Data is lawful or authorized pursuant to any applicable law, including without limitation the United States Federal Trade Commission's and Federal Communications Commission's Telemarketing Sales Rules (also known as the "Do Not Call Registry"). Except as otherwise expressly set forth in this Agreement, the Licensee hereby agrees that the Company Data is provided on an "as is, as available" basis.
6.2. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTY, TO THE EXTENT PERMISSIBLE BY LAW, OTHER THAN THE WARRANTIES EXPRESSED IN THIS AGREEMENT, IF ANY, AND SPECIFICALLLY DISCLAIMS ANY WARRANTIES OF MERCHANABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.1. Licensee shall defend, indemnify and hold Company harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed, or sustained by third parties as a result of (a) Licensee's breach of or non-compliance with this Agreement, (b) Licensee's violation of any law, or an alleged violation of law, (c) any violation or alleged violation by Licensee of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(c) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification, Licensee shall promptly notify Company, and Company shall be entitled, at its own expense, and upon reasonable notice to Licensee, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Licensee's obligations to indemnify or hold Company harmless. Licensee shall not settle any Claim without Company's prior written consent. Licensee also shall indemnify Company from any and all attorneys' fees and other costs incurred by Company in responding to, investigating, and/or enforcing its rights relative to a Claim. In the context of this section only, the term "Company" shall include members, managers, officers, directors, employees, corporate affiliates, subsidiaries, agents, attorneys, and subcontractors.
8. Limitation of Liability
8.1. In no event shall Company or its members, managers, officers, directors, employees, contractors, attorneys, licensors, licensees, or suppliers be liable to Licensee for any indirect or direct lost profits, or other incidental, consequential, or special damages, even if advised of the prospect of such damages arising out of the use of the Company Data.
8.2. In no event will Company's total cumulative liability hereunder, from all causes of action of any kind, including contract, tort (including negligence), strict liability, breach of warranty, misrepresentation, or otherwise, exceed the total amount paid by Licensee to Company under this agreement.
8.3. In all cases involving a failure of the Company Data to conform to the express terms set forth in this Agreement, Company's sole obligation, and Licensee's and its customer's sole and exclusive remedy, is for Company to provide conforming Company Data. Licensee agrees not to attempt to charge-back or dispute any amount paid to Company through Licensee's credit/debit card issuer or bank.
9.1. LICENSEE UNDERSTANDS AND AGREES THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN LICENSEE AND Dedicated Media Solutions, ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOLWEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A PENNSYLVANIA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT ("FAA").
9.2. The following procedures shall apply: 1) Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth below. 2) In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall be conducted by Judicate West, and shall be conducted using the then current Judicate West commercial rules and regulations (except as varied by this agreement). The arbitration shall take place in Lancaster County, Pennsylvania, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses). 3) Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement.
12.1. 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 shall 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.
12.2. Any notices hereunder shall be given to the appropriate party at the address specified above or at such other address as the party shall specify in writing. Notice shall be deemed given: (a) upon personal delivery; (b) if sent by fax or email, upon confirmation of receipt (by person or machine); (c) if sent by certified mail, postage prepaid, three days after the date of mailing; and (d) if sent by nationally recognized overnight courier service capable of verified receipt, upon the day after the date on which the notice is delivered to the overnight courier for next day delivery (provided verified receipt is obtained by such courier).
12.3. Neither party shall be held responsible for any delay or failure in performance of this Agreement caused by fire, hurricane, tornado, earthquake, tidal wave, meteor strikes, civil war, Internet brown-outs or black-outs, computer hacking, or acts of terrorists ("Force Majuere") if the effects of such Force Majuere could not have been avoided through the application of reasonable foresight or diligent effort. Notwithstanding the foregoing, a shortage of funds is never an event of Force Majuere.
12.4. Nothing contained herein shall in any way be construed to interpret this Agreement as creating a partnership, joint venture, employment or franchise relationship between the parties hereto. It is expressly agreed that Company and Licensee are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes expressly provided for herein. In this regard, neither party shall hold itself out contrary to the terms of this provision, and neither party shall become liable for the representation, act or omission of the other contrary to the provisions hereof.
12.5. This Agreement shall constitute the entire agreement and understanding between Company and Licensee with respect to the subject matter hereof and supersedes any prior representations, agreements, and/or understandings (other than any other separately entered into Non-Disclosure Agreement and/or Non-Circumvention Agreement) between the parties on these subjects. Any different or additional terms in any documents furnished by Licensee are specifically objected to and will not become part of this Agreement. This Agreement may be amended or superseded only by a written instrument executed by Company and Licensee. This Agreement shall not be deemed accepted by, or binding upon, either party until executed by authorized representatives of both parties.
12.6. This License Agreement is governed by the laws of the State of Pennsylvania (USA) without giving effect to its conflict of law provisions.
12.13. If the Arbitration provision is deemed inapplicable or unenforceable, then the parties hereby submit to the exclusive jurisdiction of the courts located in the County of Lancaster, State of Pennsylvania, United States of America, for any dispute arising from or related to this Agreement and agree that any and all such actions may only be brought before a court located in the County of Lancaster, State of Pennsylvania, United States of America.
12.14 Dedicated Media Solutions, LLC reserves the right to modify the terms and conditions without notice from time to time, as required, to stay current with applicable laws, or to stay current with any changes or modifications to products, services, or subscriptions being offered.
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