MASTER TERMS AND
CONDITIONS
These Master Terms and Conditions
(these “Terms”) are between
Taylor
Marketing, Data & Analytics, Inc.
, a Minnesota corporation, located at
1725 Roe Crest Drive, North Mankato, MN 56003 (“Supplier”) and the client
or customer that has either signed a Sales Agreement incorporating these Terms
by reference or requested Work from Supplier (“Client”). Accordingly, Supplier
and Client (each, a “Party” and collectively, “Parties”), by
signing the Sales Agreement or commencing Work and intending to be legally
bound, hereby agree to these Terms that are expressly incorporated into the
Sales Agreement.
1.Scope of Agreement:
The Parties hereby acknowledge and agree
that these Terms, the attached Exhibits and the Sales
Agreement(s) (collectively, “Agreement”) shall govern any and all of
Client’s purchase or license of any products or services from Supplier, as may
be more described in the Sales Agreement (collectively, “Work”).
2.Termination:
(a)
Term
. The term shall commence and
continue in accordance with and as set forth in the applicable Sales Agreement
(“Term”). If a Term extends beyond the expiration or termination of this
Agreement, each such unexpired Sales Agreement shall continue in effect for the
duration of the Term and the provisions of this Agreement shall survive and
only apply to such unexpired Sales Agreement, until the expiration or earlier
termination of the same, as permitted hereunder.
(b)
Termination
for Convenience
.
Either Party may terminate this Agreement at any time, without cause or reason
and without fine or penalty, by providing written notice to the other Party at
least ninety (90) days in advance of such termination. For clarity, the Parties
acknowledge and agree that Sales Agreement
s
and
similar documents for specific Work that have been accepted by both Parties or are otherwise in process cannot be terminated by either
Party for convenience.
(c)
Termination
for Cause
. Either Party may terminate this Agreement at any time, if (i)
the other Party materially breaches or defaults in the performance of its
obligations under the document to be terminated; and (ii) such breach or
default is not cured within thirty (30) days after written notice thereof was
provided by the non-breaching Party to the other Party. Notwithstanding the
foregoing, if the breach is a failure to pay any amounts due in a timely manner,
the period for cure shall be ten (10) days after written notice thereof.
(d)
Effect
of Expiration and Termination
. All rights and obligations arising prior to
the date of this Agreement shall not be affected by any such expiration or
termination, including without limitation, the obligations of Client to pay for
all Work, work in progress, raw materials, data and other expenses, materials,
inventory and actual costs and expenses incurred by Client through the end of
the Term (collectively, “Termination Costs”). Subject to the foregoing,
upon the expiration or termination of this Agreement or Sales Agreement, (i)
neither Party (or any of its affiliates) shall have any liability or obligation
to the other Party (or any of its affiliates) under the terminated document,
except for payment of all applicable Termination Costs; and (ii) such
terminated document shall become void and have no further force or effect, the
transactions contemplated in such document being thereby abandoned without
further action by the Parties.
4.Authorizations and Acceptance:
(a)
Client
Authorizations
. By signing
the Sales Agreement, Client hereby authorizes all Work to be performed.
(b)
Acceptance
. Within ten (10) business days
after receipt of any Work, Client will provide Supplier with documentation (i) confirming
the delivery of the same and (ii) either accepting the Work or identifying any defects
in the Work or material inconsistencies with or failure to conform to the specifications
set forth in the Sales Agreement (“Specifications”), if any. If Supplier
does not receive such documentation within the 10-day period, all Work shall be
deemed accepted by Client. Title to printed products shall transfer to Client effective
as of the date the products are received by Client.
5.Pricing and Payment:
(a)
Pricing
and Payment
. Client agrees to pay Supplier for the Work in accordance with
the prices and rates specified in the applicable Sales Agreement. If such pricing
is not specified in the applicable Sales Agreement, Client shall pay for all Work
according to Supplier’s then-current standard prices.
(b)
Invoicing;
Payment
. Supplier shall issue one or more invoices to Client for the Work
as Supplier determines reasonably appropriate. Subject to applicable credit
terms and limits, unless otherwise set forth in the Sales Agreement, payment
terms are net thirty (30) calendar days from the date of the invoice or as
otherwise specified in the applicable Sales Agreement. All payments shall be
made by Client in U.S. dollars via check or automated clearing house
transaction.
(c)
Late
Payments
. Any undisputed payment not made in a timely manner under this
Agreement shall bear interest at the rate of one and one-half percent (1.5%)
per month from the due date to the payment date. No interest charges will apply
to invoiced amounts due if, prior to the due date for such payment, Client
provides (i) written notice to Supplier identifying the disputed amount due, with
a detailed calculation of the alleged error; and (ii) payment in full of the
undisputed portion of the amount due. Supplier reserves the right to revoke any
credit extended to Client at any time and the right to withhold delivery of the
Work until payment of all undisputed amounts is received.
In
the event that
Client’s account is more than ninety (90) days in
arrears, Client shall reimburse Supplier for the reasonable costs, including
attorney’s fees, of collecting amounts due from Client.
(d)
Payment
of Taxes
. The pricing provided by Supplier does not include any sales,
excise, use, or other similar taxes imposed by federal, state, and local
governments for the Work, any taxes based on income, gross receipts, or value
of property payable to the related taxing authorities, and any non-U.S. taxes
(including without limitation, VAT, GST, HST, PST, and QST). Client shall be
responsible for payment of all such taxes, unless Client is tax exempt and has
furnished Supplier with a current tax exemption certificate evidencing the
same.
(e)
Pricing
Adjustments
. The Parties acknowledge and agree that the pricing set forth
in the Sales Agreement represents mutually agreeable pricing as of the date
such document was executed and that changes in market conditions, industry
requirements, and governmental laws and regulations may affect Supplier’s costs
related to the Work provided under this Agreement.
In the
event that
the Work involves mailing, any postage, freight or delivery
costs and those costs increase, those increases will be implemented immediately
on a pass-through basis. Supplier reserves
the right to modify, the pricing terms set forth in this Agreement or any Sales
Agreement by providing thirty (30) days prior written notice to Client. Under
no circumstances shall Supplier be obligated to sell or license any product,
service, or software for a price that is commercially unreasonable or otherwise
below its costs and expenses for the same.
6.Confidentiality:
(a)Confidentiality.
Each Party, including such Party’s Affiliates (“Receiving Party”), shall
maintain the Confidential Information of the other Party, including such Party’s
Affiliates (“Disclosing Party”), in confidence using such measures as it
uses to protect its own information of a similar nature and, in any event,
shall exercise such care in protecting the Confidential Information of the
other Party as a reasonably prudent person would exercise. The Receiving Party
agrees that the Confidential Information shall be used solely for the purposes
of performing the Receiving Party’s obligations under this Agreement and,
except for such limited purposes, the Confidential Information shall not be
used for the Receiving Party’s benefit or be disclosed to any third party. The Receiving
Party may disclose the Confidential Information of the Disclosing Party only to
its employees and its principals, partners, shareholders, directors, officers,
employees, representatives, professional advisors and/or agents (collectively, “Representatives”)
as necessary to perform its obligations under this Agreement; provided that the
Receiving Party shall be liable for the acts of its Representatives and any and
all other persons to whom it discloses the Confidential Information. Each Party
agrees that its obligations contained herein apply also to, and shall be
binding upon, every entity, whether now or hereafter existing, that directly or
indirectly controls, is controlled by, or is under common control with the
applicable Party (collectively, “Affiliates”).
(b)
Confidential
Information
. Confidential Information shall include: (i) this Agreement and
any applicable SOWs; (ii) customer lists and information; (iii) business and
marketing plans; (iv) financial statements, projections, analyses and
information related to costs and revenues; (v) Intellectual Property (defined
below); (vi) all Third Party Data and Client Data provided herein; and (vii)
all other information provided by a Disclosing Party of a proprietary and
confidential nature (whether communicated by means of oral or written
disclosures) that is marked “confidential” or is identified in writing by the
Disclosing Party as confidential within thirty (30) days after disclosure; and
(vii) all other information which by its nature would be considered
Confidential Information.
(c)Exclusions.
Confidential Information shall not include information which the Receiving
Party can show: (i) was in the possession of the Receiving Party at the time it
was first disclosed by the Disclosing Party; (ii) was in the public domain at
the time it was disclosed to the Receiving Party; (iii) enters the public
domain through sources independent of and unrelated to the Receiving Party and
through no breach of this provision by the Receiving Party; (iv) is made
available by the Disclosing Party to a third party on an unrestricted,
non-confidential basis; (v) was lawfully obtained by the Receiving Party from a
third party, not known by the Receiving Party to be under an obligation of
confidentiality to the Disclosing Party; or (vi) was at any time developed by
the Receiving Party independently of any use or reference to the Confidential
Information of the Disclosing Party.
(d)
Compelled
Disclosure Notice
. In the event that the Receiving
Party, or its Affiliate or Representative, is legally compelled (by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any Confidential
Information of the Disclosing Party, the Receiving Party shall promptly give
notice to the Disclosing Party so that the Disclosing Party may seek to quash
such compulsion or to obtain an appropriate protective order. In the event the
Disclosing Party does not quash such compulsion, and
whether
or not
a protective order is obtained, the Receiving Party under
compulsion shall disclose only such limited portion of the Confidential
Information of the Disclosing Party as, in the written opinion of counsel for
the Receiving Party, is required to avoid sanction by the court having
jurisdiction of such matter.
(e)Disposition.
The Receiving Party shall, upon request by the other, promptly return or
destroy all documentation and other materials containing any Confidential
Information of the Disclosing Party without retaining any copies thereof
(except a single copy retained by counsel solely for documentary purposes).
Each Receiving Party shall thereafter, upon request by the Disclosing Party,
provide a written statement of the Receiving Party that all such materials have
been returned to the Disclosing Party or have been destroyed.Notwithstanding the foregoing, Client will
cease using and destroy any Third Party Data upon
termination or expiration of this Agreement.
7.Data Management and Security:
(a)
Client
Warranties
. Client represents and warrants that it does and will comply
with all applicable laws, rules and regulations
(collectively, “Laws”) relating to (1) performance of its duties and
obligations under this Agreement, and (2) the operation of its business. Client warrants that it has the right to
disclose, use and to have Supplier use on behalf of Client any data provided to
Supplier or its Affiliates by Client including specifically customer names,
identifying information, addresses and other contact information and related
personally identifiable information (collectively, “Client Data”).
Client further represents, warrants and covenants
that: (i) in the event that Supplier is providing email related services as
part of the Work, Client will provide an accurate and up to date opt-out
suppression file (“Suppression File”) at the beginning of the email
services. Client will provide an updated and accurate Suppression Files to
Supplier as frequently as necessary to comply with CAN-SPAM and/or any other
applicable Laws; (ii) Client will not use, and will ensure that its agents,
customers, clients and Affiliates do not use any data
provided by Supplier for the purposes of making decisions about an individual’s
eligibility for credit or insurance.
Client further warrants that it will designate on the applicable Sales
Agreement if Client Data provided pursuant to Sales Agreement is subject to
HIPAA, Gramm-Leach-Bliley, or payment card information covered by the Payment
Card Industry Data Security Standards (“PCI DSS”) or other statutes
requiring enhanced data protection or enhanced data security procedures.
(b)Client Privacy Policy; Opt-In and Opt-Outs.Client is solely responsible for maintaining
its own privacy policies on all website(s) owned or operated by Client while
any Work is being performed or any Sales Agreement is in effect.Client represents, warrants
and covenants that all Client’s website privacy policies comply with applicable
Laws, including without limitation, the California Consumer Privacy Act of 2018
(“CCPA”) and the EU General Data Privacy Regulation (“GDPR”), as
amended. Client is independently
responsible for acquiring and/or maintaining all necessary and/or required Opt-Ins
and Opt-Outs related to any and all
marketing/advertising activities engaged in by the Client. Client agrees to
acquire and/or maintain such opt-ins and opt-outs in compliance with any and all Laws. The
terms “Opt-Ins” and “Opt-Outs” as used in this Agreement refer to the
requirements which mandate that businesses get users to opt in or opt out of
certain data collection and processing activities as defined by applicable
privacy laws, such as, but not limited to, the CCPA and GDPR.
(b)
Supplier
Handling of Client Data
. Supplier warrants that it will handle, process,
and utilize all Client Data in accordance with any Laws applicable to Supplier.
Supplier shall not be responsible for the loss or destruction of any Client Data.
Supplier’s liability is limited to restoring lost or destroyed Client Data,
provided such restoration can reasonably be performed by Supplier and Client
provides Supplier with all source Client Data in readable form for such
restoration. Client expressly
acknowledges that Supplier is not providing Client with consumer reports (“
Consumer
Reports
”), as that term is defined under the Fair Credit Reporting Act (15
U.S.C. § 1681, et seq.) and related regulations.
(c)Third Party Data Sources.Client understands and acknowledges that
Supplier may use third party sources to provide the Services described in the Sales
Agreement (“Third Party Source(s)”).
Client acknowledges and agrees that some third parties may provide data
to Supplier and to Client as part of the Services (“Third Party Data”).EXCEPT AS EXPRESSLY SET FORTH HEREIN,
Third Party Data is used by Supplier and
provided to Client on an “AS IS” and “WHERE IS” BASIS WITH NO WARRANTIES
WHATSOEVER.
(
i)
Purchase
Intent Data.
If the Work involve
Supplier’s provision of Third Party Data that include purchase intent data (“
Purchase
Intent Data
”) as set forth in the Sales Agreement or otherwise, Supplier
has obtained the following warranties from the applicable third party, provided
that the Purchase Intent Data are used by Client in accordance with this
Agreement: (i) the Purchase Intent Data complies with all applicable Law, (ii)
the Purchase Intent Data provider has obtained all licenses, permissions and
consents necessary provide the Purchase Intent Data; (iv) the Purchase Intent
Data does not violate the intellectual property rights of any third party; (v)
if required by applicable Law, individual consents have been obtained by the
Purchase Intent Data provider or its licensor(s) from all data subjects
included with the Purchase Intent Data; (vi) the Purchase Intent Data was not
compiled or collected using web crawling software or web-scraping methods or software;
and (vii) that the Purchase Intent Data provider has eitherremoved,
from the Purchase Intent Data provided, or flagged the Purchase Intent
Data provided any information related to data subjects who have objected to the
collection, use or transmission of information relative to the data subject.
(ii)
Web Intercept / Pixel Tag End User License
Agreement.
If the Work includes the
license of Pixel Tag software (“Software”) as set forth in the Sales
Agreement or otherwise,
Client agrees
to the terms set forth in the End User License Agreement set forth in Exhibit B
(“EULA”), hereby incorporated by reference.
“Pixel Tag” means an HTML code
snippet placed on Client’s website which is loaded when a user visits a website
or opens an email, and is included in the Software.Client understands and acknowledges that
Client will be placing Pixel Tags on the Client’s website(s) to create the web
intercepts described in the Sales Agreement or otherwise used by Client.
(d)No Data Storage. Supplier is not
obligated to store, maintain, or otherwise keep any Client Data, information,
data files, and other documents after the Work has been completed. Supplier is
not a data storage company and will return or destroy all such Client Data
within a commercially reasonable time, in accordance with applicable Law, after
completion of the applicable Work for which it was provided, unless specifically
agreed upon in writing by the Parties. Client
represents and warrants that it has retained and will retain backup copies of
all data, information, and/or items stored by Supplier or Client as part of
Client’s use of the services and the software and that Client has implemented
and regularly maintains its own disaster recovery plan
(e)Restrictions on Use of Work.Client will comply with the Supplier’s
Acceptable Use Policy attached as Exhibit A (“AUP”) in effect on the
Effective Date of this Agreement with regard to use of any
Services,
and
is expressly incorporated herein.
Supplier may update the AUP at any time in its sole discretion.Supplier may update the AUP upon written
notice to Client. Client shall not (and shall not authorize any other person
to): (i) copy or otherwise reproduce any Work (or any Software licensed under
the EULA), except as authorized by an applicable Sales Agreement or as
necessary for backup and/or disaster recovery; (iii) disclose, de-compile,
disassemble or otherwise reverse engineer any Work for any purpose; (iv) install
and/or license any Work, in whole or in part, for use by a third party; or (v)
use Work to develop, publish or maintain any directory or similar product.
(f)Security Breach.In the event of a known or suspected
unauthorized access, destruction, use, modification, or disclosure of Client
Data or Confidential Information or other compromise of Supplier’s information
technology systems or networks (collectively, “Security Breach”), Supplier
will: (i) notify Client as soon as reasonably possible in the event of a
confirmed Security Breach; (ii) mitigate, to the extent practicable and
reasonable, any harmful effects of such Security Breach; (iii) provide
commercially reasonable cooperation to identify any third parties that received
or obtained any Client Data; (iv) take all commercially reasonable efforts to
recover Confidential Information on Clients behalf; (v) take commercially
reasonable steps to prevent a recurrence of a Security Breach in future.In the event of a Security Breach, Client may
also at its option terminate this Agreement and obtain a prorated refund of any
pre-paid fees for the Term if the Security Breach is not remediated within
sixty (60) days.
8.Intellectual Property:
(a)
No
Transfer of Intellectual Property
. This Agreement will not transfer,
modify, or change any Party’s rights to Intellectual Property. Accordingly,
Client hereby retains sole and exclusive ownership of and rights to all
Intellectual Property presently owned and/or later developed by Client. Supplier
hereby retains sole and exclusive ownership of and rights to all Intellectual
Property presently owned and/or later developed by Supplier.
(e)
Authorization
to Use Client IP
. Client hereby authorizes Supplier to use the Intellectual
Property of Client provided or specified for use or reproduction by Supplier in
this Agreement (“Client IP”) as necessary or appropriate for the
performance of the Work and Client represents and warrants that Client has the
right to authorize Supplier to incorporate such Client IP into the Work. Client
authorizes Supplier to place any necessary or appropriate markings on the Work
related to Intellectual Property owned by or licensed to Supplier.
9.
General
Representations and Warranties
:
(a)Supplier.
Supplier represents and warrants that (i) Supplier has all right and authority
required to enter into this Agreement; (ii) Supplier will comply with its
obligations under this Agreement such that the Work shall materially conform to
the Specifications for a period of ninety (90) days from the date the services
are provided or products are delivered; and (iii)
Supplier will convey good title to tangible deliverables included as part of
the Work.
(b)Client.
Client represents and warrants that (i) Client has all right and authority
required to enter into this Agreement; (ii) Client will comply with its
obligations under this Agreement; (iii) Client IP will not infringe the
Intellectual Property of any third party; and (iv) Client will comply with all
applicable Laws.
(c)Disclaimer.
The representations and warranties set forth in this Agreement are in lieu of
all other warranties, express or implied, including the warranties of
merchantability, fitness for intended purpose, use, and non-infringement (to
the extent not specifically provided), all of which are expressly disclaimed.
10.Limitations on Liability and Remedies:
(a)
Consequential
Damages
. Notwithstanding anything to the contrary herein, the Parties and
their respective Affiliates shall not be liable to any other party hereunder,
either in contract or in tort, for any consequential, incidental, indirect,
special, or punitive damages whatsoever, including without limitation, any loss
of future revenue, income or profits, or any diminution of value or multiples
of earnings damages, whether or not the possibility of such damages has been
disclosed to the other party in advance or could have been reasonably foreseen
by the other party.
(b)
Direct
Damages
. Notwithstanding anything to the contrary herein, the aggregate and
cumulative liability of Supplier and its Affiliates arising out of or relating
to this Agreement and the Sales Agreement to any other party hereunder shall
not exceed the total amount actually paid by Client to Supplier during the three
(3) month period immediately preceding the date the damage first occurred.
(c)Remedies.
If the products do not conform to applicable Specifications, Supplier shall, at
no additional cost to Client, promptly repair or replace the product. If the
products infringe any Intellectual Property rights of a third party, Supplier
shall at its option: (i) secure license rights from the third party; (ii)
modify the Work to avoid infringement; or (iii) discontinue the Work which
results in such infringement. If the products cannot be repaired, replaced, or
made non-infringing within thirty (30) days after Supplier receives Client’s written
notice of nonconformance, Client’s sole and exclusive remedy for nonconformance
shall be the right to reject the nonconforming products and, if Client has paid
for such products, Supplier shall reimburse Client an amount equal to the cost
of the nonconforming products.
(d)Scope.
The foregoing limitations, exclusions, disclaimers and
remedies shall apply to the maximum extent permitted by applicable Law, even if
any remedy fails its essential purpose.
11.Indemnification:
(a)
Indemnification.
Each Party agrees to be responsible and assume liability for the negligent acts
and omissions and the intentional misconduct of itself and its Representatives
arising out of or in connection with this Agreement. Accordingly, each party (“
Defending
Party
”) shall indemnify and defend the other party (“Protected Party”)
and hold the Protected Party harmless from and against
any
and all
claims, suits, actions, proceedings, demands, losses, payments,
costs, expenses, damages, liabilities, fines, or penalties (including
reasonable attorneys’ fees) brought by a third party (collectively, “Claim”)
to the extent such Claims are connected to or arise from the Defending Party’s:
(i) breach of this Agreement, including without limitation, express
representations, warranties, and covenants;
(ii) violation of Laws applicable to the Defending Party, including
without limitation laws relating to intellectual property rights (provided,
that in no event, shall Supplier be liable for any Claim arising out of its
compliance with instructions, requirements, or specifications approved,
provided, or required by Client or its Representatives (e.g.
information, artwork, logos and trademarks provided by Client or its
Representatives); or
(iii) gross negligence and/or
willful misconduct.
(b)
Tender
Defense
. The Protected Party shall promptly provide written notice to the
Defending Party of any such Claims, promptly tender full control of the defense
of any such Claims to the Defending Party, and reasonably cooperate with and
provide non-financial assistance to the Defending Party in the defense of any
such Claims.
(c)
Restrictions.
The Defending Party will not be responsible for indemnifying or defending the
Protected Party to the extent the Protected Party receives payment from an
insurer or other third party as compensation or payment for any such Claims,
and such compensation or payment shall be primary, if (i) the Protected Party
initiates a defense of any such Claim without notifying the Defending Party; (ii)
the Protected Party fails to provide written notice to the Defending Party in a
timely manner; or (iii) the basis of the Claim arises out of or is related to
the Protected Party’s or its Representative’s negligence or willful misconduct.
(d)
Settlement
Requirements
. The Defending Party shall be not liable for any cost,
expense, settlement, or compromise incurred or made by the Protected Party in
any legal action without the Defending Party’s prior written consent.
12.Insurance:
Supplier
shall at
all times
during the term of this Agreement obtain and maintain
insurance with responsible companies in such amounts and against such risks as
are customarily carried by business entities engaged in similar businesses
similarly situated and may (and if requested by Client, will) furnish Client
with a certificate of insurance evidencing such policies in January of each
calendar year.
13.Force Majeure:
(a)
Effect
of Force Majeure
. Each Party shall be excused from performance and shall
not be in default in respect of any obligation hereunder to the extent that the
failure to perform such obligation is due to an event of Force Majeure. If a
Party wishes to claim protection in respect of an event of Force Majeure, it
shall promptly after the occurrence of such event of Force Majeure, notify the
other Party of the nature and expected duration of the Force Majeure and shall
thereafter keep the other Party reasonably informed until such time as it is
able to perform its obligations. The Parties shall use their reasonable endeavors
to overcome the effects of the Force Majeure; mitigate the effect of any delay
occasioned by the Force Majeure, including by recourse to alternative mutually
acceptable (which acceptance shall not be unreasonably withheld by either
Party) sources of services, equipment and materials; and ensure resumption of
normal performance of this Agreement as soon as reasonably practicable;
provided that neither Party shall be obliged to settle any strike, lock out,
work stoppage, labor dispute, or such other industrial action by its employees.
(b)
Definition
of Force Majeure
. For the purpose of this
Agreement, “Force Majeure” shall mean any circumstance not within the
reasonable control of the Party affected, but only if and to the extent that
such circumstance materially and adversely affects the ability of the Party to
perform its obligations under this Agreement and, despite the exercise of
reasonable diligence, could not have reasonably been prevented, avoided, or
removed by such Party. For clarity, Force Majeure shall include, without
limitation, (i) natural calamities and acts of God (such as fires,
contaminations, earthquakes, lightning, cyclones, hurricanes, floods, droughts,
or such other extreme weather or environmental conditions, geological or ground
conditions, pandemic (including COVID-19), epidemic, famine, and plague); (ii)
acts of war (whether declared or undeclared), invasion, acts of terrorists,
blockade, embargo, riot, public disorder, violent demonstrations, insurrection,
rebellion, civil commotion and sabotage; (iii) cyberattacks and other hostile
or offensive attempts to improperly access computer information systems,
infrastructures, computer networks or devises, data, functions and other
systems; and (iv) accidents and delays caused by third parties, as well as
strikes, lockouts, work stoppage, labor disputes, labor shortages, and similar
action by workers related to or in response to the terms and conditions of
employment.
14.Notices:
(a)Notice.
All notices, consents, waivers, and other communications that are required to
be given or may be given pursuant to the terms of this Agreement (“Notice”)
shall be in writing signed by the Party giving notice or by counsel for such
Party and shall be sufficient in all respects if delivered in person, or mailed
by registered or certified mail, postage prepaid, or sent by a commercial
expedited delivery service, to the address provided above, as applicable or
such replacement address as any Party hereto shall have designated by Notice to
the other Party as provided herein. All Notices to Supplier shall also be sent
to:
Taylor Marketing, Data &
Analytics, Inc.
Attn: Chief Legal Counsel, 1725 Roe Crest Drive, North
Mankato, Minnesota 56003.
(b)
Receipt
Requirements
. Any Notice shall be effective when the Party giving the
Notice has complied with Section 14(a) and when received by the Party specified
to receive such Notice. A Notice is deemed to have been received (i) upon
receipt as indicated on the signed receipt, if given by hand or sent by
registered or certified mail or commercial expedited delivery service; or (ii) if
the Party to whom Notice is sent refuses delivery or if the Notice cannot be
delivered due to a change in address for which no Notice was provided, then
upon rejection, refusal, or inability to deliver. Notwithstanding the foregoing
provisions, if any Notice is received after 5 p.m. on any business day or on
any day other than a business day where received, the Notice shall be deemed to
have been delivered at 9 a.m. on the following business day.
15.General Terms:
(a) Assignment.
This Agreement, and the rights, interests, and obligations related thereto may
not be assigned to a non-Affiliate, third party by either Party (whether by
operation of law or otherwise) without the prior written consent of the other
Party. For purposes of this Section 15(a), any merger, consolidation, corporate
restructure, or sale of assets or corporate interests by either Party shall not
be deemed an assignment. Subject to the foregoing, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
(b) Subcontracting.
Supplier may subcontract the performance of its obligations under this
Agreement to other parties, provided that Supplier
shall remain responsible for the performance of any subcontracted obligations.
(c) Waiver.
No waiver by either Party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other Party will be considered
a waiver of any other condition or provision or of the same condition or
provision at another time.
(d) Non-Solicitation.
During the Term and for twelve (12) months thereafter, the Parties shall not
hire (or solicit for or induce the termination of the employment) any employee
of the other Party who becomes known to such Party in connection with the
performance of this Agreement, without the prior written approval of the other
Party. The foregoing will not prohibit either Party from employing any
individual who applies for a position in response to an internal posting,
employment advertisement or other general solicitation of employment.
(e)
Use of Client Name and Logo in Marketing
Material.
Client acknowledges and agrees that Supplier
may use Client’s name and logo, identifying Client as a Supplier customer on
all Supplier marketing material, including, without limitation on Supplier’s
website and other online marketing platforms.
(f)
Independent
Contractor
. Supplier is an independent contractor, and is not an employee,
servant, agent, partner, or joint venturer of Client.
Neither Party has nor shall have any authority to bind or represent the other
Party in any matter. While Client shall identify and request the Work to be
performed, Supplier shall determine the means by which
all Work is to be accomplished. Client is not responsible for withholding, and
shall not withhold, FICA or any other employment-related taxes of any kind from
any payments made to Supplier. Neither Supplier nor its employees shall be
entitled to receive any benefits which employees of Client are entitled to
receive, nor shall Supplier or its employees be entitled to receive from or
through Client any workers’ compensation, unemployment compensation, medical
insurance, life insurance, paid vacations, paid holidays, pension, profit
sharing, or social security on account of Work performed under this Agreement.
(g)
Entire
Agreement
. This Agreement, sets forth the entire
agreement and understanding of the Parties as to the subject matter hereof, and
merges and supersedes all prior discussions, agreements, and understandings of
every and any nature among them. This Agreement shall be effective only when
signed by the Parties. No Party shall be bound by any condition, definition,
warranty, or representations, other than as expressly set forth or provided for
in this Agreement, or as may be set forth in writing and signed by the Party to
be bound thereby. These Terms and any Sales Agreement may not be amended,
supplemented, changed, or modified, except by agreement in writing signed by
the Party to be bound thereby. The provisions of this Agreement that, by their
nature and content, must survive the completion, rescission, termination, or
expiration of this Agreement in order to achieve the
fundamental purposes of this Agreement will so survive and continue to bind the
Parties.
(h)
Inconsistent
Documents Ineffective
. Except as may be otherwise expressly stated in these
Terms or any Sales Agreement executed by the Parties, no terms and conditions
presented in a proposal, purchase order, order confirmation, acceptance, or any
other document provided by either Party to the other, nor any electronic
click-wrap, terms of use or similar online consent or acceptance language
accompanying or set forth as a prerequisite to any electronic interface or
utility associated with any Work, shall be deemed to amend the terms hereof and
any such contradictory or additional terms shall be ineffective. In the event
of any ambiguity or conflict between any of the terms and conditions contained
in this Agreement and the terms and conditions contained in any other document,
the terms and conditions of this Agreement shall control, unless the Parties
have expressly provided in such other document that a specific provision in
this Agreement is amended, in which case this Agreement shall be so amended,
but only with respect to such document.
(i) Severability.
If any provision of this Agreement shall be held to be illegal, invalid, or
unenforceable that provision shall be enforced to the greatest extent
permissible so as to effect the intent of the Parties,
and the legality, validity, and enforceability of the remaining provisions
shall in no manner be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties will negotiate
in good faith to amend this Agreement to replace the illegal, invalid, or
unenforceable provision with legal, valid, and enforceable language that as
closely as possible reflects such intent.
(j) Venue.
Any legal action arising out of or relating to this Agreement shall be
commenced in a federal court in Minnesota or in state court in Nicollet County,
Minnesota, and the appellate courts thereof, and each party hereto irrevocably
submits to the exclusive jurisdiction and venue of any such court in any such
suit, action, or proceeding.
(k)
Governing
Law
. The validity, construction, and performance of this Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Minnesota applicable to contracts executed in and performed entirely within
such state, without reference to any choice of law, statutes, or principals
thereof.
(l)
Waiver
of Jury
. To the fullest extent permitted by law, the Parties hereby waive
any right to have a jury participate in the resolution of the dispute or legal
action, whether sounding in contract, tort, or otherwise, between the Parties
or any of their respective Affiliates arising out of, connected with, related
to or incidental to this Agreement.
(m)
Attorney
Fees
. If any litigation shall be commenced to enforce, or relating to, any
provision of this Agreement, or any collateral documents, the prevailing Party shall
be entitled to an award of reasonable attorney fees (including fees related to
the services of in-house counsel) and reimbursement of such other costs as it
incurs in prosecuting or defending such litigation.
(n)
Construction
and Interpretation
. The Parties acknowledge that these Terms and the Sales
Agreement are the result of negotiations between the Parties and that this
Agreement and shall not be construed in favor of or against any Party by reason
of the extent to which any Party or its professional advisors participated in
the preparation of this Agreement or based on a Party’s undertaking of an
obligation under this Agreement. No provision hereof shall be construed as a
limitation or modification of any other provision hereof. Unless otherwise
specified in the relevant provision, “including” means “including without
limitation” and no exclusion of unlisted items shall be inferred from their
absence.
This Acceptable Use Policy is expressly
made part of the Terms set forth above. The
following rules apply to Client’s use of any Work provided by Supplier (as
defined in the Agreement).
Work may only be used for lawful
purposes as specifically allowed in any Master Terms and Conditions (“Terms”)
or Sales Agreement, and are hereby incorporated by
reference.
Work shall not be used:
·
for any purpose that violates any applicable law, regulation, or
applicable self-regulatory guideline;
·
for any purpose that violates the privacy or data protection
rights of any person;
·
for the modeling or determination of consumer creditworthiness,
consumer credit approval, a consumer’s eligibility for employment or insurance,
or denial of services;
·
for any communication that refers to selection criteria or
presumed knowledge about the recipient;
·
in connection with individual credit, employment or insurance applications;
·
in connection with any consumer reportingdata;
·
to post or distribute any content that a person does not have
sufficient rights and licenses to utilize;
·
in connection with any product or service that includes or
relates to any “sensitive data” as that term is defined in the Network
Advertising Initiative (“NAI”) Code of Conduct, including any information
concerning a person’s precise medical condition or sexual orientation;
·
to display or market material that exploits any person under the
age of 18;
·
to advertise, provide, or distribute content that involves the
sale or exchange of sexual paraphernalia or adult content (including but not
limited to films, audio recordings, and magazines);
·
to advertise, provide, or distribute content relating to any
escort or dating services;
·
to advertise, provide, or distribute content that is grossly
offensive, including blatant expressions of bigotry, prejudice, racism, hatred;
·
to advertise, provide, or distribute lewd, lascivious, filthy,
excessively violent, harassing or otherwise objectionable content;
·
to advertise, provide or distribute content that advocates,
promotes or otherwise encourages violence against any government, organization,
group or individual, or which provides instruction, information or assistance
in carrying out such violence;
·
to advertise, provide or distribute content relating to weapons
or ammunition;
·
to advertise, provide or distribute content relating to credit
repair services, get rich quick, or work at home offers;
·
to advertise, provide, or distribute content relating to illegal
betting and gambling services, including but not limited to online poker,
online casino games, horse/dog racing and sports betting;
·
in any manner that may cause emotional or physical harm to any
person, or to “stalk” or otherwise harass a person;
·
in any manner that would provide individuals incarcerated in
prisons or other correctional institutions with access to the Services;
·
to provide or distribute any malware or other code that installs
or otherwise affects a user’s device without the user’s consent;
or for unsolicited fax purposes.
CAN-SPAM COMPLIANCE:
If Work will be used in connection with any offer distributed by email, Client
is required to ensure that it or any person to whom it provides the Work complies
with the following requirements:
·
An unsubscribe URL must be included in every email creative. The
unsubscribe URL can be provided by the Client or Supplier. Mailer level opt out URL or email must remain active for a minimum
of thirty (30) days from launch of live program.
·
A physical or post office box address must be provided for
purposes of accepting opt-out requests.
·
Any and all
opt-out requests must be honored by adding email addresses of
those opting-out to applicable suppression lists.
·
False, misleading, and deceptive header, transmission and
subject headings are prohibited.
·
The actual Mailer’s and/or Mailer’s list name must appear in the
from line of any email.
·
Supplier reserves the right to reject any campaign it feels, in
its sole discretion, does not comply with the above requirements.
·
If the Client or Mailer has conducted any previous prospect or
customer email campaigns, it/they must submit any previous opt-outs or do not
mail request emails for suppression from any Work.
Exhibit
B – End User License Agreement
This End User License Agreement (this“EULA”),
is made by and between
Client or customer
that has been provided access to or the ability to use Software (as defined
below)
(“End User”) and Taylor Marketing, Data & Analytics, Inc. (“Licensor”).
If CLIENT AND/OR
END USER does not agree to the terms in the EULA, Client and its End Users
should immediately cease using the Software, including, without limitation, any
and all Pixel Tags provided by Supplier.
WHEREAS
,
Licensor may
sublicense certain computer software applications. including pixel tag software
and related tools, which is more particularly set forth in the user manuals and
other written materials provided by Licensor to describe the functionality and
use of the pixel tag software (the “Documentation”); and
WHEREAS
,
End User desires to
obtain a license to use Software (as defined below) and Licensor desires to
allow the End User to access and use Software pursuant to the terms and
conditions set forth in this EULA; and
WHEREAS
, Licensor, pursuant to the terms and
conditions set forth in this EULA, desires to provide to End User a license for
the use of Software and the Documentation;
NOW THEREFORE
, in consideration of
the promises and mutual covenants contained in this EULA and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1.
LICENSE GRANT AND SCOPE
a.
Retention of Rights
:
The
third party
owner (“Owner”) owns and retains all rights,
titles, and interest in Software and the Documentation.The pixel tags software consists of its code,
its related technology platform, return data elements (PII Data), and all other
intellectual property rights inherent therein
(the “Software”).
b.
Authorized Users
: End User must create an
Authorized User account to access and use the Software.The term “Authorized User” as used in this
EULA means those persons authorized to use the Software pursuant to the license
granted under this EULA. End User must
create an Authorized User account for each person or entity which will be using
the Software on its behalf.
c.
Permissible Use
: Subject to End User’s
payment of the applicable fees and compliance with the terms and conditions of
this EULA, Licensor hereby grants to End User a restricted, non-exclusive,
non-transferable, non-sublicensable (except otherwise allowed), limited right
to access and use the Software throughout the terms of this EULA.End User is entitled to use the Software and
Documentation as follows: (1) End User may download and install the line of
code provided to End User, after End User’s entering of required information,
on its web-site; (2) End User may use and run the Software in accordance with
this EULA; and (3) End User may download or copy the Documentation (Software’s
user manuals, technical manuals, and any other materials provided by Licensor),
in printed, electronic, or other form, that describes the installation,
operation, use, or technical specifications of the Software.
d.
Use of Code
: End User shall not, in contravention of the Documentation or
without the express and written consent of Licensor, add, remove, or amend any
of the Software’s underlying code for any purpose, and shall not allow or
permit any other person or entity to do the same.
e.
Unauthorized User(s)
: Other than as set forth
herein, End User shall not permit any person or entity to use or access the
Software and Documentation and End User shall utilize its best efforts to
prevent and protect the Software from unauthorized access, use, or
copying. End User is responsible for
notifying Licensor if it, or any of its Authorized Users or any of its business
customers or clients, becomes aware of any unauthorized use of or access to the
Software and Documentation. End User
understands and agrees that it may reasonably be required to provide
information to Licensor to investigate and correct such unauthorized access.
Licensor will not be liable for any loss, damages, liability, expenses or attorneys’ fees that End User may incur as a
result of someone else using End User’s password(s) or accounts, either with or
without End User’s knowledge and/or authorization, and regardless of whether
End User has or has not advised Licensor of such unauthorized use.End User shall be liable for losses, damages,
liability, expenses and attorneys’ fees incurred by
Licensor resulting from any unauthorized use or access.
f.
Other Prohibited Uses
: End User shall not, and
shall require its Authorized Users not to, directly or indirectly: (1) provide
any other person or entity, including any subcontractor, independent
contractor, affiliate, or service provider of End User, with access to or use
of the Software or Documentation; (2) modify, translate, adapt, or otherwise
create derivative works or improvements, whether or not patentable, of the
Software or Documentation or any part thereof; (3) reverse engineer,
disassemble, decompile, decode, or otherwise attempt to derive or gain access
to the source code of the Software or any part thereof, or to otherwise misuse
the Software in any manner not expressly authorized by Licensor or provided for
in the Documentation; (4) remove, delete, alter, or obscure any trademarks or
any copyright, trademark, patent, or other intellectual property or proprietary
rights notices provided on or with the Software or Documentation, including any
copy thereof; (5) rent, lease, lend, sell, sublicense, assign, distribute,
publish, transfer, or otherwise make available the Software, or any features or
functionality of the Software, to any person or entity (other than those
allowed under this EULA) for any reason, whether or not over a network or on a
hosted basis, including in connection with the internet or any web hosting,
wide area network (WAN), virtual private network (VPN), virtualization, time-sharing,
service bureau, software as a service, cloud, or other technology or service;
(6) remove, delete, efface, alter, obscure, translate, combine, supplement, or
otherwise change any trademarks, copyright, patent, terms of the Documentation,
warranties, disclaimers, or other intellectual property rights, proprietary
rights or other symbols, notices, marks, or serial numbers on or relating to
any copy of the Software or Documentation; (7) use the Software or
Documentation in violation of any law, statute, or regulation; and (8) use the
Software for purposes of: (i) benchmarking or competitive analysis of the
Software; (ii) developing, using or providing a competing software product or
service; or (iii) any other purpose that is to Licensor’s detriment or commercial
disadvantage.
g.
License Exclusion
: This EULA does not grant
End User any right in the algorithms, rules or models used or created by
Licensor or Owner, regardless of whether they may be employed to provide the
Software to End User.
2.
END USER OBLIGATIONS
a.
Use of Software
: End User is responsible and liable for all uses of the Software
and Documentation through access thereto provided by Licensor, directly or
indirectly. Specifically, and without
limiting the generality of the foregoing, End User is responsible and liable
for all actions and failures to take required actions with respect to the
Software and Documentation by its Authorized Users or by any other person or
entity to whom End User, or an Authorized User, may provide access to or use of
the Software and/or Documentation, whether such access or use is permitted by
or in violation of this EULA. End User
is responsible for obtaining all necessary and/or required consumer approvals
or directions, as well as providing or posting all necessary and/or required
privacy and other notices in compliance with the EULA and any applicable terms
of service for the Software and Documentation.
3.
LICENSOR OBLIGATIONS
a.
Deliverables
: Licensor shall deliver access to the Software to End User
together with the Documentation as set forth in the Sales Agreement.
b.
No Requirement/Obligation for Update Services
:Licensor has no obligation to provide
maintenance and support services such as updates, upgrades, bug fixes, patches,
and other error corrections (collectively, “Updates”).Updates will be provided at Licensor’s sole
discretion and End User agrees that Licensor has no obligation to develop any
Updates at all or for particular issues. End User
further agrees that all Updates, if provided, will be deemed Software, and
related documentation will be deemed Documentation, all subject to all terms
and conditions of the EULA. End User
acknowledges that End User’s receipt of Updates will require an internet
connection, which connection is End User’s sole responsibility. Licensor has no
obligation to provide Updates via any other media unless provided for elsewhere
in the EULA. Maintenance and support services do not include any new version or
new release of the Software that End User may issue as a separate or new
product, and Licensor may determine whether any issuance qualifies as a new
version, new release, or Update in its sole and reasonable discretion.
c.
Opt-Ins and Opt-Outs
: Licensor is responsible
for obtaining all necessary and/or required opt-ins and opt-outs, as well as
providing or posting all necessary and/or required notices in compliance with
the EULA.
4.
COLLECTION AND USE OF INFORMATION
a.
Collection of Information
: End User acknowledges that Licensor may, directly or indirectly
through the services of third parties, collect and store information, which may
include but is not limited to foundational internet data such as browser
information, device information, server access data, andnon-PII data elements utilized for the
functionality of and regarding the use of the Software by End User and/or End
User’s Authorized Users, clients, or
their customers and consumers; and about equipment, network(s), or web sites on
which the Software is installed or through which it otherwise is accessed and
used, through the provision of services associated with or related to the
Software, the provision of maintenance and support services, if any are
provided, and security measures included in the Software.
b.
Use of Information
: End User agrees that
Licensor may use the information identified in Section 4(a) above for any
lawful purpose, including but not limited to the provisioning services during
the Term of the EULA, which may include but not be limited to the following
purposes: (1) maintaining and improving the performance, operation, and
functionality of the Software or developing Updates; and (2) verifying End
User’s compliance with the terms of this EULA and enforcing Licensor’s rights,
including all intellectual property rights in and to the Software.
c.
Use Disclaimer
: Unless otherwise directed
in writing by Licensor, End User shall incorporate the following statement and
direct hyperlink into End User’s privacy policy or terms of use for End User’s
respective web site:
“This site is being
monitored by one or more third-party monitoring software(s
),
and
may capture information about your visit that will help us improve
the quality of our service. You may opt-out from the data that SmartPiXL is collecting on your visit through a universal
consumer options page located at https://smart-pixl.com/Unsub/unsub.html.”
5.
AUDIT RIGHTS
a. Company Audit
: End User shall keep
accurate books of account and record covering End User’s use of the Software in
accordance with the terms and conditions of this EULA. During the Term, but no
more than once per year, Licensor shall have the right to request that: (1) End
User certify, in a document signed by an officer of End User, its compliance with
the usage rights granted in this EULA; and (2) at Licensor’s own expense
(except in the event that such audit demonstrates that End User has not ceased
using the Software; in such case End User may, in Licensor’s sole discretion,
be deemed responsible for such audit costs), to inspect and audit the books and
records of End User that are relevant to verifying End User’s compliance with
the terms of this EULA, including, but not limited to, ensuring End User has
ceased the use of the Software and removed all copies of the Software from such
systems as required hereunder. End User
shall fully cooperate with Licensor’s personnel conducting such audits and
provide all reasonable access requested by Licensor to records, systems,
equipment, information, and personnel, including machine IDs, serial numbers,
and related information related to its, including its Authorized Users’ or
clients’ and customers’ use of the Software. Licensor will conduct such
inspection and audit during End User’s regular business hours in such a manner
as to not interfere with End User’s normal business activities.
6.
INDEMNITY
a.
Infringement Indemnification by Licensor
:Licensor (through Owner’s indemnification
obligation to Licensor) indemnifies, defends, and holds End User harmless from
and against any claims, actions, or demands alleging that the Software
infringes any patent, copyright, or other intellectual property right of a
third party, if the such claim, action, or demand was
brought in good faith. If use of the
Software is permanently enjoined for any reason, Licensor, at Licensor’s
option, and in its sole discretion, may (1) modify the Software so as to avoid infringement; (2) procure the right for End
User to continue to use and reproduce the Software and Documentation; or (3)
terminate this EULA and refund to End User all license fees paid to Licensor.
Licensor shall have no obligation under this section for or with respect to
claims, actions, or demands alleging infringement that arise as a result of (1)
the combination of noninfringing items supplied by
Licensor with any items not supplied by Licensor; (2) modification of the
Software or Documentation by End User or by Licensor in compliance with End
User’s designs, specifications, or instructions; (3) the direct or contributory
infringement of any process patent by End User through the use of the Software;
and (4) continued allegedly infringing activity by End User after End User has
been notified of the possible infringement.
b.
Indemnification by End User
: End User is responsible and indemnifies,
defends and holds Licensor harmless for any and all
losses, liability, or damages arising out of, or incurred in connection with,
End User’s use or reproduction of the Software pursuant to this EULA.Therefore, End User agrees to indemnify,
defend, and hold harmless Licensor, Owner and their respective officers,
directors, employees, agents, affiliates, and successors from and against any
and all losses, damages, liabilities, deficiencies, claims, actions, judgments,
settlements, interest, awards, penalties, fines, costs, or expenses of whatever
kind, including reasonable attorneys’ fees, arising from or relating to End
User, an Authorized User, or a client or customer of End User’s use or misuse
of the Software and/or such person or entity’s breach of this EULA, including
but not limited to the content End User submits or makes available through the
Software. Consistent with this section,
Licensor and Owner shall be entitled to receive advance payment of
indemnification amounts to cover legal expenses to be paid by the End
User.
7.
CONTROL OR EXPORT REGULATION
:
The Software may be subject to United States or
international technology control or export laws and regulations. End User is
responsible for determining whether its use of the Software is subject to such
laws or regulations. To the extent that
it does, End User must comply with all domestic and international export laws
and regulations that apply to the technology used or supported by the
Software. These laws may include
restrictions on destinations, end users, and end use.
8.
THIRD-PARTY LINKS AND SERVICES
:Licensor is not responsible for the
availability of any external sites or resources provided by third-party
websites or resources which access or links to are created through End User,
including Authorized User and client, websites and does not endorse and is not
responsible or liable for (1) any content, advertising, products, or other
materials on or available from such sites or resources, (2) any errors or
omissions in these websites or resources, or (3) any information handling
practices or other business practices of the operators of such sites or
resources. End User further acknowledges and agrees that Licensor shall not be
responsible or liable, directly or indirectly, and
that Licensor shall be indemnified, for any damage or loss caused or alleged to
be caused by or in connection with use of or reliance on any linked sites or
resources. End User, including its Authorized Users and clients’ interactions
with such third-parties will be governed by the third-parties’ own terms of
service and privacy policies, and any other similar terms.
11.
US GOVERNMENT RIGHTS:
The
Software is commercial computer software, as such term is defined in 48 C.F.R.
§2.101, as amended. Accordingly, if the End User is the US Government or any
contractor therefor, End User shall receive only those rights with respect to
the Software and Documentation as are granted to all other companies under
license, in accordance with: (a) 48 C.F.R. §227.7201 through 48 C.F.R.
§227.7204, as amended, with respect to the Department of Defense and their
contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government
End Users and their contractors.