DATA USAGE LICENSE AGREEMENT
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.
Click Promise, LLC ("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 as (as defined below);
WHEREAS, Licensee will, subject to the terms and conditions set forth herein, use the Company Data 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 Company Data in the United States for the purpose of contacting a potential consumer no more than 1 time. "Company Data" shall mean the contact information for a potential customer, which may include data elements, select criteria, record layouts and formats, individual identity, contact information, and associated permission standards captured, generated, licensed, or owned by Company or its licensors and/or affiliates.
2. Fees, Reporting, and Audits
2.1. Licensee shall pay Company a sum equal the total amount shown at checkout ("Company Fees"). 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. This authority is to remain in full force and effect until Licensee cancels the Auto-Ship Program.
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."
2.4. If Licensee's payment cannot be processed, the Auto-Ship Program may be suspended or terminated.
2.5. Company Fees that are not timely paid shall be subject to interest at a rate of the lesser of twelve percent (12%) per annum or the maximum permitted by law until paid in full.
2.6. Licensee shall maintain thorough and accurate records relating to usage of the Company Data. Licensee agrees that Company, or any designee of Company, shall have the right, at Company's sole cost and expense, to audit and/or copy these records and any source documents used in the preparation thereof during normal business hours upon written notice at least five (5) business days before the commencement of the audit. If the audit reveals a breach of this Agreement, Licensee shall immediately compensate Company for all of its costs and expenses related to such audit. This remedy shall not preclude Company from pursuing other remedies available by law or this Agreement.
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. License Restrictions and Property Rights
4.1. All rights not expressly granted herein are reserved by Company. Company does not grant any implied license under any patents, trademarks, trade secrets, copyrights, or other proprietary rights held by Company.
4.2. All property rights in the Company Data remain the property of Company and its licensors and are protected by the trade secret, personal property, copyright, and other intellectual property right laws of the United States and all other applicable jurisdictions.
4.3. Licensee hereby agrees not to copy, attempt to create, or permit others to attempt to create, by reverse engineering or otherwise, any part of the Company Data or source code used by Company to provide, generate, or deliver the Company Data.
5. Term and Termination
5.1. 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.
5.2. This Agreement may be immediately terminated by either party:
5.2.1. In the event of a breach by either party of an express obligation or warranty contained herein;
5.2.2. In the event that a party determines that Company Data is being used in violation of any applicable law or in manner that is harmful to the party's reputation.
5.2.3. 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
5.2.4. In the event either party becomes subject to any bankruptcy or insolvency proceeding under federal, state or foreign statutes.
5.3. 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.
5.4. The following provisions of this Agreement shall survive termination: Sections 2, 4, 5.3, 5.4, 6-11.
6. Confidential Information
6.1. "Confidential Information" shall mean the following for purposes of this Agreement:
6.1.1. The Company Data, and any Company information, product idea, know-how, data, identity of the source of the Company Data, process, technique, design, drawing, program, formula or test data, work in process, data, business model, script, database structure, database sequence, database organization, template, training system, training tool, letter, process, business and sales process, and/or engineering, marketing, financial, sales, supplier, customer, employee, investor or business information, affiliated business name, data source name, data source network, data source website, including, but not limited to the procedures used by Company to obtain Company Data, whether in oral, written, graphic, or electronic form; and
6.1.2. Any and all documents, diagrams, drawings, computer programs or other communication which is either conspicuously marked "confidential," known or reasonably known by the other party to be confidential, or of a proprietary nature and is learned or disclosed in the course of discussions, course of performance, studies, or other work undertaken between the parties.
6.2. Licensee covenants and agrees it shall not, for any reason or under any circumstance at any time, directly or indirectly use, convert, apply, appropriate, employ, alter, transform, assign, put into operation or otherwise use any of the Confidential Information, in whole or in part, for any purposes whatsoever, other than as expressly permitted herein. Licensee acknowledges any such action taken by it is in contravention to this Agreement and is strictly prohibited.
6.3. Licensee shall ensure that its employees and agents agree not to use or disclose Confidential Information for any purpose other than those expressly permitted in this Agreement without the prior written consent of Company.
6.4. Prior to disclosure of any Confidential Information received, the Licensee will ensure that it will first obtain from all consultants it retains a written agreement to (a) hold all Confidential Information in confidence and not to use such information for any subsequent business relationship between the parties; and (b) to return all Confidential Information received immediately after consultant has completed its work to the party for whom said information was received.
6.5. Upon the expiration and/or termination of this Agreement, the Licensee shall ensure that it promptly deliver to Company any and all such Confidential Information in its possession or under its control and shall make, at Company's request, its facilities, files, and computer equipment accessible for Company and/or its agent to confirm compliance.
6.6. Licensee shall not use Confidential Information directly and/or indirectly to acquire, develop, and/or produce any data for its own account or for resale to any third party.
6.7. Licensee represents and affirms that Company will suffer irreparable injury in the event of a breach by Licensee of this confidentiality provision such that an award of injunctive relief is appropriate and justified.
7. Representations and Warranties
7.1. 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.
7.2. 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.
7.3. 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.
8.1. 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.
8.2. 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.
9.1. 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.
10. Limitation of Liability
10.1. 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.
10.2. 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.
10.3. 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.
11.1. LICENSEE UNDERSTANDS AND AGREES THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN LICENSEE AND PEAK USA, 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 CALIFORNIA 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").
11.2. 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 San Diego County, California, 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. If any portion of this Agreement is ruled by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then, to the maximum extent permitted by law, the provision shall be reformed to reflect the intent of the parties or if the provision cannot be so reformed, severed from the contract, it being agreed that such severance shall not affect the validity and enforceability of the remaining provisions of this Agreement.
12.6. This Agreement was prepared jointly by both parties and their attorneys. The terms of the Agreement are not to be strictly construed against either party.
12.7. 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.
12.8. No person who is not a party to this Agreement shall have or acquire any rights by reason of this Agreement nor shall any party hereto have any obligation or liability whatsoever to any such person by reason of this Agreement.
12.9. This Agreement or any interest therein shall not be assigned by Licensee without the prior written consent of Company.
12.10. Section headings are for convenience only and will not be considered part of this Agreement.
12.11. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
12.12. This License Agreement is governed by the laws of the State of California (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 San Diego, State of California, 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 San Diego, State of California, United States of America.
12.14. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to any other relief to which the party may be entitled.