This
click through Data Use Agreement ("Agreement")
is effective as of the date of purchase, ("Purchase
Date") by and between Alliance Franchise Brands, located at 47585 Galleon Drive, Plymouth, Michigan 48170 ("AFB") and purchaser located at (“Purchaser””).
1)
Background: This
Agreement governs the terminable, revocable, non-exclusive, non-transferrable, limited
license of certain
list counts, order marketing lists,
data products and related services, and other data selected from various AFB
sources and third party suppliers of AFB
(collectively, the "Data")
granted to Purchaser, and the strictly limited use of the Data provided to
Purchaser. The Data to be provided to Purchaser and the pricing for use of such
Data is determined on a per order basis as set forth on the AFB website Order
Form. AFB's Data pricing is subject to change at any time in the sole
discretion of AFB.
2) Term: The initial term of this Agreement will be
one (1) year from the Purchase Date for "Multiple Usage Base" Data, or will expire upon the first use for "Single Usage Base" Data (the "Term"). For Multiple Usage Base, this Agreement will terminate automatically at
any time prior to the end of the Term if Purchaser is liquidated or dissolved,
or suffers a receiver or trustee to be appointed for it, or makes a general
assignment for the benefit of its creditors or institutes or has instituted
against it any proceedings under any law relating to bankruptcy or relief of
debtors, and such filing is not dismissed within sixty (60) days, and outstanding fees will be due and payable at termination, and Purchaser will not be entitled to a refund for any
portion of any fees or charges paid to AFB. If Purchaser materially breaches any term or condition of this Agreement, or any term or condition of an applicable addendum, and fails to cure that breach within fifteen (15)
days after receiving written notice of the breach from AFB, then AFB may
immediately terminate this Agreement, or, separately, any applicable addendum
giving rise to the breach, by delivering written notice of such immediate
termination to Purchaser at any time following the end of the fifteen (15) day
cure period.
3) Fees and Payment: AFB Data fees will be reflected on the Order Form at the time of payment.
Payment must be made by credit
card or by account based on membership registration. Cancellations of orders may be subject to cancellation fees and/or
reduced run charges as set forth on an order confirmation or any applicable addendum.
Purchaser's obligation to pay the fees and charges set forth on each invoice
is entirely independent of
whether Purchaser receives payment from its End Users. Any amounts paid after
the Due Date shall bear interest at the rate of one and one-half percent (1.5%)
per month. In the event Purchaser fails to make timely payment,
Purchaser will be responsible for all reasonable expenses (including attorney's fees) incurred by AFB in
collecting such amounts. AFB reserves
the right to suspend performance of its obligations hereunder (or under any
other agreement with Purchaser) in the event Purchaser fails to make timely payments
hereunder or under any other agreement with AFB. Upon termination of this Agreement
or any applicable addendum by either party for any reason, any amounts
owed by Purchaser to AFB, shall become immediately due and payable. If such
amounts are not paid within fifteen (15) days of termination, the amount due
shall accrue interest, calculated from the termination date, as set forth above.
4) Taxes: Currently, the charges for the Data or
services do not include taxes. If AFB or any
third party suppler of the Data is required to pay any federal, state, county or local sales, use or similar taxes based on the Data or services provided
under this Agreement, the taxes will be itemized, and reflected on the Order Form at time of payment.
5)
Restrictions and Conditions on Use of the Data:
a) Purchaser is granted a terminable, revocable, non-exclusive, non-transferrable, strictly limited license to use Data. This license is revocable at any time by AFB
if Purchaser or any End-User violates any of the terms of this Agreement.
Purchaser is obligated to ensure that the Data is used strictly in the manner
set forth in this Agreement for Purchaser's own
marketing programs, and for no other purpose and is for one-time use
only. Any Data purchased by Purchaser may
be used for marketing programs by mail, telemarketing, mobile marketing or email or for
database analysis only. All right, title and interest in the Data will remain
the property of AFB or its third party suppliers and
no right, interest in or
title to any Data will be sold, conveyed or otherwise transferred to Purchaser, End-User
or any other third party. AFB hereby
grants a terminable, revocable, non-exclusive,
non-transferrable, strictly limited
license of the Data to Purchaser. The Data furnished to Purchaser may be licensed to its End Users in connection with their own marketing programs,
and for no other purpose.
The Data is to be used
for the list
rental purposes and projects, or as may be otherwise specified in any applicable
addendum only, and unless otherwise specified within the order confirmation for the specific
project, is for one-time use only. Purchaser is obligated by this Agreement to ensure that its End Users are made aware that no right, interest
in, or title to any Data is passed to End Users under this Agreement or any applicable addendum. Purchaser
agrees that no list or other data
will be copied,
duplicated, transferred, disclosed, or
retained
after the permitted one-time rental use, unless otherwise specified in any
applicable addendum or in any written order confirmation at the time of
purchase.
b)
Purchaser agrees that their marketing
materials and solicitations will not make reference to any selection criteria
or presumed knowledge regarding the intended recipient of such solicitation, and must be in good taste and of the highest quality.
c)
Purchaser will comply with all state
and federal breach notification laws in connection with any unauthorized access
to or loss of Data that is under Purchaser's control. In addition
to the foregoing, Purchaser will
immediately notify AFB of any unauthorized access to or loss of Data that is
under Purchaser's control.
Purchaser will indemnify AFB and its third-party suppliers for all third-party
claims that result from unauthorized access to or loss of Data that is or was
under Purchaser's control at the time of such unauthorized access. Purchaser
agrees to comply with all state law requirements and industry best practices with regard to electronic transfer of Data, including, without
limitation, encryption, data security, and data privacy
standards.
d) Purchaser agrees that it may not use or permit the use of the Data in
connection with the preparation, publication, cleaning or maintenance of any directory of any nature. Purchaser will not
use or permit the use of the Data for compiling, enhancing, verifying,
supplementing, adding to or detracting from any mailing list, geographic or
trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold,
rented, published, or provided to a third party. Purchaser will not use or permit use of the
Data for generating any statistical information which is sold, rented, published, furnished or in any manner
provided to a third
party, or use or permit the use of the Data in
connection with individual credit, employment or insurance applications.
e)
Purchaser agrees that it will not use
or permit the use of the Data in violation of any federal, state, local, or
international law, rule, or regulation or for any unlawful purpose, and will
comply with the Association of National Advertisers (ANA) Guidelines for
Ethical Business Practice. Purchaser agrees to comply and cause its End Users
to comply with any and all current and future federal, state, local and international laws concerning use of the Data, telephone
solicitations and marketing, and the transmission of facsimiles and email, including but not limited
to , the Telephone Consumer Protection Act of 1991, the
CAN-SPAM Act of 2003, Canada's Anti-Spam Legislation of 2014, Fair Credit
Reporting Act (FCRA), the Federal Trade Commission ("FTC")
Telemarketing Sales Rule, the California Consumer
Privacy Act ("CCPA" ), and any other existing
or future FTC rules and any
enforcing regulations related to the foregoing. Purchaser understands that any
person violating such laws, rules or regulations may be subject to substantial
civil and criminal penalties, for each transmission of any unsolicited facsimile or other information. Purchaser
acknowledges that the
U.S. Federal government, certain
states and self-regulatory bodies may each have restrictions on telemarketing activities, including, but not limited to, permitting a telephone subscriber to give public notice that such subscriber does
not wish to receive sales solicitation telephone calls. Due to the varying publication dates of such notices, AFB disclaims any warranty, express
or implied, that the
names and telephone numbers of all such subscribers have been identified on or deleted
from any Data or other list
ordered by Purchaser. Further, Purchaser agrees that it will fully indemnify AFB for any claims, actions, damages, fees or costs related to any breach or violation by
Purchaser or its End Users of any of the acts, regulations or guidelines set
forth in this Section 5.
f)
Purchaser understands and warrants
that it will comply with the rules
relating to any Do-Not-Call Registry promulgated by federal, state, foreign, international or self-regulatory bodies (such registries and lists collectively, the "DNC Registries"), specifically including, without
limitation, those rules that:
i)
Require all sellers who initiate, or
cause a telemarketer to initiate, an outbound
telephone call that is not otherwise
exempt, to pay the appropriate fees for any DNC Registries;
ii)
Require all telemarketers who
initiate an outbound telephone call, that is not otherwise exempt on behalf of
a seller, to ensure that the seller has paid all appropriate fees for any DNC
Registries; and
iii) Require any company performing scrubbing of any DNC Registries on behalf
of a seller to ensure that it is scrubbing the calling lists against that
seller's and only that seller's version(s) of the DNC Registries.
g) Purchaser certifies that it will use the information gathered from the
DNC Registries solely in compliance
with the provisions of any applicable acts, guidelines or regulatory or
self-regulatory body or otherwise to prevent telephone calls or facsimile to telephone numbers on
the registry.
h) COMPACT (formerly AccuRes) Orders: Purchaser
acknowledges that in the event it
orders COMPACT data or services
through AFB, any data or services provided are performed by an independent vendor and that such vendor provides a
separate warranty regarding the service or information provided.
AFB is not responsible for and makes
no representation or warranty regarding the performance or accuracy of
such services and data, and Purchaser agrees that they will not have any
recourse against AFB in the event that the services
and data provided to Purchaser are unsatisfactory, inaccurate or incomplete. Purchaser further acknowledges that any COMPACT
list or other data is for one-time rental use only. Altering such data may affect the postage
rates. Purchaser agrees that no COMPACT list or other data will be copied,
duplicated, transferred, disclosed or retained after the permitted one-time rental use. The COMPACT
data may not be used for
building or integrating such data into any other
database.
i)
ACXIOM Orders: Purchaser
acknowledges that in the event Purchaser orders ACXIOM data or services through
AFB, any data or services
provided are performed
by an independent vendor and thatsuch vendor provides a separate warranty
regarding the service
or data. AFB is not responsible
for and makes no representation or warranty regarding the performance or
accuracy of such services or data, and Purchaser agrees that it will not have any recourse against AFB in the event that the services or data provided to Purchaser
are unsatisfactory, inaccurate or incomplete Purchaser further acknowledges that any ACXIOM
list or other data is for one-time
rental use only. Purchaser agrees that no ACXIOM
list or other data will be copied, duplicated, transferred, disclosed or
retained after the permitted one-time rental use. The ACXIOM data may not be
used for building or integrating such data
into any other database. Purchaser acknowledges and agrees
that any such data or lists will at all times remain the intellectual property of ACXIOM, and that neither
Purchaser, or if Purchaser is an authorized re-seller, its customers, nor any other
third parties have any
proprietary rights whatsoever in the data or lists.
j)
DNC Manager Orders: Purchaser acknowledges that in the event it orders DNC Manger scrubbing services through AFB, the scrubbing services will be performed
by an independent vendor and that such vendor provides a compliant list
processing receipt regarding the accuracy of the scrubbing service. AFB is not
responsible for and makes no representation or warranty regarding the
performance or accuracy of the scrubbing service and Purchaser agrees that
neither it nor its End Users shall have any recourse against AFB in the event that the scrubbing services provided to
Purchaser are unsatisfactory, inaccurate or incomplete.
k) Resident Occupant Orders: Purchaser
acknowledges and shall inform its End Users that in the event it orders Resident
Occupant data or services through
AFB, any data or services
provided are performed
by an independent vendor and
that such vendor provides a separate warranty regarding the service or
information provided. AFB is not responsible for and makes no representation or
warranty regarding the performance or accuracy of such services and data, and Purchaser
agrees that it shall have no recourse against AFB in the
event that the services and data provided to Purchaser are
unsatisfactory, inaccurate or incomplete. Purchaser further acknowledges that any Resident
Occupant list or other data is for one-time rental
use only, unless otherwise
specified within the order confirmation. Altering such data may affect the
postage rates. Purchaser agrees that no Resident Occupant list or other data
will be copied, duplicated, transferred, disclosed or
retained after the permitted one-time rental use. Purchaser is prohibited from
and shall provide in all of its customer agreements that the customer are
prohibited from: (i) commingling the Resident
Occupant Data with its own database or information from a third-party, (ii)
using or permitted use of the Resident Occupant Data to benchmark it against
files offered by suppliers for third-party use, (iii) voluntarily producing any
of the Resident Occupant Data in any legal proceeding, (iv) obtaining
Computerized Delivery Sequencing (CDS) qualification or equivalent, (v) selectively retuning
individual addresses or components,
(vi) obtaining or granting any right of ownership, (vii) assigning, leasing or transferring the Resident Occupant Data or any portion
of it in any manner
not expressly authorized by this Agreement and any attempt
to do so shall be void,
(and (vii) performing any type of address, street,
street number or lookup or directory assistance type of applications or seeking
information relating to neighbors of a particular name or address. In addition,
Purchaser shall not provide to its End Users or any other party, all or substantially all of the Resident Occupant Data.
l) Restrictions: In addition to the restrictions set forth above in this Section 5, in no
event may Purchaser use or permit the use of any Data to advertise, sell, or exchange any products or services
that involve sexual paraphernalia; drug paraphernalia; pornographic materials; weapons; credit repair services or other illegal or illicit activities. Purchaser agrees, for any prospecting use of the Data not involving Purchaser's house files, which include
a designation that an individual consumer
has opted out of receiving marketing
solicitations, to honor such election. In the event that Purchaser
does not honor such election, AFB may terminate this Agreement and any licenses
hereunder immediately and without further liability to Purchaser or any other
party, and Purchaser agrees to defend, indemnify, and hold harmless AFB, COMPACT or ACXIOM, as the case may be, for
any claims arising
out of any failure to honor such election.
6)
Move
Update Standards: Purchaser hereby
represents, warrants and agrees that it and its End Users will comply with all current and
future USPS rules, regulations and standards and that all mailings entered
on November 23, 2008 or thereafter must be updated
with an approved or alternate method of address correction.
7) Email Prospecting and Append Orders:
a) All Data is
supplied for a one time use, with the exception of email appends to Purchaser's files which
can be used without limitation within
a twelve (12) month period after AFB's third party
supplier completes the permission
pass.
No
copy of the Data, in any form whatsoever, may be retained by Purchaser or any
person or firm retained by the Purchaser,
for purposes of processing names for mailing or usage, longer than one week
after the mailing, except for archival purposes or withthe priorconsent of AFB. Purchaser and its End User
understand and agree that AFB makes no
guarantee as to the results of any campaign and that results may vary based on
the offer, the target audience, and other variables. Purchaser understands and
agrees that because email data is self-reported and is based upon the
information received upon signup, AFB makes no guarantees as to the integrity,
accuracy, reliability
or compliance with Data Protection Laws of any email data or records
provided.
b)
No copy of the Data, in any form
whatsoever, may be retained by the Purchaser, End User, and/or mailer or any
person or firm retained by the Purchaser or its End User and/or mailer, for
purposes of processing names for mailing or usage longer
than one week after the mailing, without
the prior consent of AFB.
c) No part of the
supplied Data, including but not limited to, postal, email, phone, additional
selector data elements, and specialty files, can be used to enhance, modify or integrate with any other list owned by Purchaser,
for any reason whatsoever without the express written approval of AFB.
d)
"Multi-buyers" or names
that are derived from the Data (i.e. postal or email list) and another
rented, exchanged or owned list may be mailed one time for each time the name
appears, provided that the Purchaser has paid all parties
involved, full rental
fees for each
mailing occurrence.
e) AFB does not recommend usage of
email creative comprised solely or primarily of image files. In the event Purchaser elects to use this type of creative, Purchaser understands and agrees that AFB will not
be held liable for delivery
or blocking issues
and that no makegoods, reblasts, credits
or refunds will be
issued.
f) Email Deployment Services. Email messages, to be sent on behalf of Purchaser
or its End User, shall first be subject to review by AFB. AFB reserves the right to reject any message in its sole discretion. AFB will add opt-out verbiage to Purchaser or its End Users message
and manage opt outs of email deployments on behalf of
Purchaser. Purchaser and/or its End User understand and agree that AFB shall
not be held liable for delivery or blocking issues; no make-goods, re-blasts, credits or refunds will be
issued.
PURCHASER
ACKNOWLEDGES AND UNDERSTANDS AND SHALL INFORM ITS END USER THAT AFB DOES NOT WARRANT
THAT THE SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE AND
THAT AFB MAY OCCASIONALLY EXPERIENCE "HARD OUTAGES" DUE TO INTERNET
DISRUPTIONS THAT ARE NOT WITHIN ITS CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE
CONSIDERED A BREACH OF THIS AGREEMENT.
Retention of
Email Deployment: If Purchaser or its End User are deploying an email marketing
list not purchased from AFB; Purchaser and/or
its End User represent and warrant that the list contains fully
verified and opted in information in compliance with Data Protection
Laws. If the list is supplied to Purchaser from their End User, Purchaser represents and warrants
that they have examined the terms and conditions under which the addresses were originally compiled
and determined that all recipients have in fact opted-in to the
type of mailing list the End User intends to operate. Lists must be used for
their original purpose. If requested by AFB, Purchaser or its End User shall fully disclose
all terms and conditions of each and every email marketing list. Purchaser
and or its End User understand and agree not to provide
or market to emails
of Canadian origin in compliance with Canada's Anti-Spam Legislation of 2014
(CASL), unless Purchaser or End User can provide proof of express consent from
these email subscribers prior to sending the
commercial email. Purchaser or
its End User therefore agree to accept liability and not to hold AFB or its
third-party suppliers liable for any fines or violations in compliance with
CASL email communications.
g) Compliance with
CAN-SPAM: Each party shall comply with the provisions of CAN-SPAM Act in
performing their respective obligations hereunder, including but not limited
to, the multiple
sender rule, the use of an opt- out mechanism honored within 10 days
and valid for 30 days, the use of clear and accurate header and subject line
information, and the use of a physical mailing
address.
8) Accuracy of Data and Limitation of Liability:
a) AFB provides Data to Purchaser from recognized industry
compilers of telephone directories and various other sources AS IS AND WITH ALL FAULTS. AFB makes no
representation or warranty, express or implied, regarding
the accuracy or completeness of the Data to be delivered, results to be obtained with the
Data, or that
any lists in the Data
have been scrubbed
against any DNC Registries.
b)
Purchaser acknowledges
that the Data provided by AFB and its third party suppliers will
contain a degree of error. Purchaser also acknowledges that the prices that AFB
charges for the Data are based, in part, upon AFB's expectation that the risk of any
damages, claims, loss or injury that might occur will be borne by Purchaser.
For these reasons, Purchaser agrees that it is responsible for determining that
the Data is sufficiently accurate for Purchaser's, or its End-Users’ purposes. Industry guidelines indicate 7-10%
is an acceptable undeliverable rate, and 15% is an acceptable disconnect
rate. These rates are merely guidelines. The actual rates will vary and there is no
guarantee that the undeliverable and
disconnect rates related to the
Data will fall within these rates. Purchaser acknowledges and agrees that
it will not be entitled to any
refund and will not withhold payment for the Data in the
event that the Data is inaccurate or the undeliverable and disconnect rates fall outside
the industry guideline rates.
c)
The
Data, including, without limitation, postal, epostal, and email records,
names and addresses are not guaranteed as deliverable, but AFB
uses commercially reasonable efforts to meet or exceed industry standards for postal deliverability. AFB makes no representation or guarantee as to the conversion results of the mailing.
d)
PURCHASER ACKNOWLEDGES THAT THE DATA
IS NOT THE PRODUCT OF AN INDEPENDENT
COMPILATION OR INVESTIGATION PROMPTED BY
OR ON BEHALF OF PURCHASER, BUT IS UPDATED AND REVISED INDEPENDENTLY ON A PERIODIC BASIS. PURCHASER ACKNOWLEDGES THAT EVERY BUSINESS DECISION TO SOME DEGREE REPRESENTS AN ASSUMPTION OF RISK AND THAT AFB AND ITS THIRD PARTY SUPPLIERS OF DATA,
DO NOT AND WILL NOT ASSUME THAT RISK, IN ANY MANNER OR PROPORTION
WHATSOEVER. PURCHASER THEREFORE AGREES NOT TO HOLD AFB OR ITS THIRD
PARTY SUPPLIERS LIABLE FOR ANY
LOSS OR INJURY ARISING OUT OF OR CAUSED,
IN WHOLE OR IN PART, BY AFB OR ITS THIRD
PARTY SUPPLIERS' NEGLIGENT OR OTHER ACTS OR OMISSIONS IN PROCURING, COMPILING,
COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE DATA.
FURTHER, PURCHASER AGREES THAT IN NO
EVENT WILL AFB OR ITS THIRD PARTY SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE OF
ANY KIND OR CHARACTER (INCLUDING, BUT NOT LIMITED TO LOSS OF DATA OR INFORMATION, SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES) THAT PURCHASER, ANY END USER OR
OTHER CLIENT OF PURCHASER,
OR OTHER PARTY, SUFFERS OR INCURS ARISING OUT OF ANY ACTS OR OMISSIONS OF
AFB OR ITS THIRD PARTY SUPPLIERS IN CONNECTION
WITH ANYTHING TO BE DONE OR FURNISHED HEREUNDER, REGARDLESS
OF THE CAUSE OF THE LOSS, DAMAGE OR INJURY AND
REGARDLESS OF THE NATURE OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN
VIOLATED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE DELIVERY OR USE, OF THE DATA, REGARDLESS OF THE FORM
OF ACTION.
e)
FOR ANY DAMAGES CAUSED WHOLLY OR IN PART BY AFB’S INABILITY TO FULFILL ITS RESPONSIBILITIES HEREUNDER, AFB'S
SOLE LIABILITY WILL
BE RETURN TO PURCHASER THE AMOUNT PAID FOR THE DATA. IN NO EVENT SHALL
AFB'S LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF TOTAL AMOUNT PAID BY PURCHASER HEREUNDER OR $2,000.00.
f)
AFB PROVIDES NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
9) Indemnity: In addition to any of the remedies
provided in this Agreement, Purchaser agrees to defend,
indemnify and hold AFB its parent, affiliates, shareholders, directors, officers,
employees, agents and
third-party
suppliers harmless from
and against any and all claims, damages, losses, judgments, costs and expenses (including,
without limitation, reasonable attorney's fees) claimed by a third-party and
sustained, suffered, paid or incurred by AFB, its agents, officers, directors, employees or affiliates as a result of the breach of any
warranty, undertaking, representation or agreement made by Purchaser in this Agreement, or arising out of any violation of law by Purchaser. AFB will give Purchaser prompt notice of any claim or action
alleging facts which, if
true, would constitute a breach of any of Purchaser's
obligations under this Agreement. This obligation of indemnity shall survive
the termination or expiration of this Agreement
10) Approval of Purchaser or
Customer Materials: AFB reserves the right to
require Purchaser to obtain AFB's advance written approval of any material which Purchaser proposes to
mail or distribute and Purchaser
acknowledges that it may not distribute the Data to any third party without the
prior written approval of AFB, to be given or denied in its sole
unfettered discretion.
11) Purchaser Responsibilities: Upon receipt, Purchaser will inspect
the Data for compliance with Purchaser's selection criteria. If verifiable errors are reported to AFB
within twenty (20) days, AFB will reprocess
the order without charge. Under no circumstances shall
reprocessing include production costs of any Purchaser or its End User's materials.
12) End
User Certification, Requirements and Restrictions:
a) No distribution or license of the Data by Purchaser will be made except
pursuant to the terms of this Agreement or other form of license necessary to
access the Data.
b)
Purchaser will promptly notify AFB if Purchaser becomes
aware of any illegal or unauthorized use or
copying of the Data. Purchaser will
reasonably assist AFB in taking all steps AFB in its sole discretion believes
to be necessary to defend
AFB's rights in the Data.
d)
Purchaser will maintain accurate
books and records in connection with activity under this Agreement for the term of this Agreement and for two (2) years thereafter. Such records will include
copies of all executed sales agreements. AFB, or its representative, may audit the
relevant books and records of Purchaser during the term of this Agreement and
for two (2) years thereafter to ensure compliance with the terms of this
Agreement. Any such audit will be conducted during regular business hours at
Purchaser's offices and will not unreasonably interfere with Purchaser's
business activities.
e)
Purchaser agrees not to solicit any
customers of AFB, including any End Users of the Data not originated by the
Purchaser, during the term of this Agreement and for a period of three (3)
years after termination or expiration of this Agreement.
f)
Purchaser may not transfer the Data to another End User upon termination of the previous End User's use of the Data.
g)
Purchaser is prohibited from making
any modifications, enhancements or adaptations to the Data, reverse
engineering, decompiling, disassembling the Data, creating any derivative works
based on the Data in any other product, unless expressly
permitted in a separate writing signed by the parties hereto.
13) Changes in Law: If any existing law or regulation is changed or if any new law or regulation is enacted that
affects the Data, its use or services provided under this Agreement, AFB and/or
Purchaser may modify this Agreement
to the extent reasonably necessary
to ensure that use of the Data will be in full compliance with such laws and regulations and AFB may modify the
pricing applicable tothe Data.
14)
Assignment:
Purchaser
may not transfer, sell, or otherwise assign any of its rights under this
Agreement, either directly or by operation of law, without the prior written
consent of AFB and any unauthorized attempted assignment will be null and void.
15) Independent Contractors: Nothing in this Agreement will be
construed to create a partnership, joint venture, or agency relationship
between the parties. The parties to this Agreement are independent contractors and neither party has any authority to bind or commit the other in any respect
whatsoever, and neither party will hold itself out as the agent,
principal, partner, associate or joint venturer of the other or as having any power or authority to bind or commit the other party.
16)
Notice: All notices,
requests, or other communications will be in writing and will be delivered by
overnight mail (next business day delivery charges prepaid), certified
mail, return receipt requested
(First Class postage
prepaid), to the address located on the first page of this Agreement, or to
such other address as either party, by like notice,
will designate. Any such notice, request or other communication will be deemed
"given" to a party and be effective upon receipt by such party or refusal of delivery at such address as
set forth above.
17) Waiver: No term or provision hereof
will be considered waived by either party, and no breach excused by either party, unless
such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or
implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
18)
Severability: If any
provision of this Agreement will be held invalid or unenforceable after hearing
or proceedings before an independent
tribunal, such provision will be deemed deleted from this Agreement and the remaining provisions of this Agreement will continue in full force and effect
so long as the deleted
provision does not eliminate or otherwise substantially change the economic
benefits of this Agreement to either party or significantly impair the rights or increase the obligations of either party. The parties will make good
faith efforts to replace each such deleted provision by a valid and enforceable provision mutually
agreeable to the parties.
19) Governing Law: This Agreement will be governed by and
construed in accordance with the laws of the
State of Michigan
(without giving effect to choice of law principles). In the event of a dispute
arising out of this Agreement, whether in contract or tort, the parties agree to submit to the jurisdiction of the
courts of the State of Michigan. Venue will be in the Federal and/or state
courts located in Wayne County, Michigan.
20) Entire Agreement; Amendment: This Agreement represents the entire understanding between the parties
to this Agreement and supersedes all prior agreements and arrangements, oral or written, between the parties
with respect to the subject
matter of this Agreement.
Changes to this Agreement:
AFB may make changes to this Agreement from time to time for security, commercial or legal reasons. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. When
these changes are made, a notification will be posted on our website at
https://www.Allegra.dataleadsonline.com.com/Allegra.dataleadsonline.com-legal-revisions/ along with a copy of the current
standard Agreement.
21) Successors and
Assigns: This Agreement will inure to the benefit of and will be
binding upon the parties and their respective permitted successors and assigns.
This Agreement shall also be for the benefit of AFB’s third party suppliers
Purchaser's authorized
representative has read the foregoing Agreement and by clicking the "I
ACCEPT" button on the Allegra.dataleadsonline.com
website, Purchaser through its authorized representative acknowledges that
Purchaser fully understands and consents to the contents of this Agreement.
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