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Append Terms | List Rental Terms | SMS Terms and Conditions
1. Applicability and Term
1.1. Applicability. This document is a Services Agreement (“Agreement”) between Client and Foundation Media Group, and while in effect governs all transactions in which Foundation Media Group provides any data, information, analytical, computer or other services to Client (“Foundation Media Group Services” or "Services"). Capitalized terms used herein are defined in Section 6 or elsewhere below.
1.2. Term. The term of this Agreement shall begin on the Effective Date above and end upon the termination by either party with thirty days (30) written notice to the other party or upon being superseded by a subsequent Services Agreement.
1.3. Supplemental Terms. The terms of this Agreement may be supplemented by individual amendments ("Amendments") containing additional terms applicable to certain data and/or Services. All such Amendments must be expressed in writing and signed by both parties.
1.4. Foundation Media Group Work Orders. Foundation Media Group will accept written work orders from Client for Foundation Media Group Services (“Client Orders”). Client and Foundation Media Group shall mutually agree upon the definition and specification of the Foundation Media Group Services to be provided in response to individual Client Orders and the Foundation Media Group Pricing Schedule A (if applicable) attached hereto and hereby incorporated by reference. Client shall provide Foundation Media Group with such information as necessary to define each Client Order. Formal acceptance of Client Orders shall occur when Foundation Media Group commences work pursuant to an associated Foundation Media Group Work Order.
1.5. Client Purchase Orders. The terms of this Agreement shall be superior to, and supersede, any preprinted terms contained in any Client purchase orders or other Client-provided documents. No Client purchase order or other Client provided-documents shall be binding upon Foundation Media Group unless signed by an authorized Foundation Media Group employee.
2. Delivery and Order Fulfillment
2.1. Delivery Schedule. Foundation Media Group will use commercially reasonable efforts to perform Foundation Media Group Services in accordance with the agreed upon production and delivery dates set forth in the Foundation Media Group Work Order. The performance dates are contingent upon Foundation Media Group’s receipt of any materials which Client is to provide on the dates and in the form agreed upon and specified in the Foundation Media Group Work Order.
2.2. Cancellation Policy: Cancellation Policy: Clients can cancel or change any individual order, in writing, prior to delivery of data or services. Under no circumstance can client cancel an order after delivery of data or services has been rendered and will be responsible for 100% of gross order / invoice value. Clients may be subject to a 25% cancellation charge if an individual order is cancelled after "testing" and "set-up".
3. List Processing and Database Services
3.1. Performance of Services. In the performance of Services for Client hereunder, Foundation Media Group shall perform Services in a prompt and timely manner and use commercially reasonable efforts to complete such Services in accordance with the agreed upon schedule. Foundation Media Group shall devote such time, attention and care to the performance of such services as Foundation Media Group devotes to the normal and regular performance of Services for Foundation Media Group Clients generally. Foundation Media Group shall have the right to employ such methods and procedures in the performance of Services as Foundation Media Group shall deem appropriate and have the right to refuse to perform services for a Client where the performance of Services by Foundation Media Group would be unlawful or adversely reflect on Foundation Media Group’s reputation or integrity.
3.2. Computer Media Specifications; Regeneration of Data. In connection with any Services requiring Client to supply Client Data, all such data shall be delivered to Foundation Media Group at Client's expense, and shall be submitted in a format and upon such computer media as mutually agreed upon by the parties. Client represents and warrants that Client shall have obtained proper rights, ownership, agreement, or approval for the use and re-use of such data for processing prior to the delivery of such data to Foundation Media Group. Client shall maintain one (1) usable copy of all Client Data as supplied to Foundation Media Group in order to enable Foundation Media Group to regenerate such data. In the event of loss, damage, or destruction to any Client Data while in Foundation Media Group possession or control, Foundation Media Group’s liability shall be limited to the cost of regeneration of such data utilizing the Client copy of such data in an amount not-to-exceed One Hundred Dollars ($100.00).
3.3. Delivery, Storage, and Return of Client-Provided Files. Foundation Media Group shall deliver to Client or to such other party as Client may direct, all final output data resulting from Services performed hereunder ("output files”). Following completion of a Client Order, Foundation Media Group may erase or destroy the associated output files, except for those files that Client has directed Foundation Media Group in writing to retain. If Client directs Foundation Media Group to retain output files longer than six (6) months, Client shall pay a monthly storage fee in accordance with Foundation Media Group’s then standard prices.
3.4. Non-conforming Services; Review of Interim Results. Foundation Media Group shall perform the Services hereunder in accordance with Client Orders and at Foundation Media Group’s expense, correct any non-conforming services where the nonconformity results from errors on the part of Foundation Media Group. If requested by Foundation Media Group, Client shall review interim results provided by Foundation Media Group and inform Foundation Media Group in writing of any nonconformance. Where Foundation Media Group is not informed of nonconformance, Foundation Media Group shall be entitled to assume the correctness of the interim results for the purpose of completing the Services under this Services Agreement, and shall not be liable for the cost of correcting any nonconformance reasonably discoverable by Client as part of the interim review. Foundation Media Group shall use all reasonable resources to reschedule the non-conforming Services so as to ensure the completion on or before the scheduled completion date for the Services. Client's failure to give Foundation Media Group written notice of non-conforming Services within ten days (10) of Foundation Media Group’s performance of the Services shall constitute final acceptance and approval of the Services by Client.
3.5. Postal Regulations. Foundation Media Group shall perform all Processing Services hereunder in accordance with postal regulations applicable to preparation, makeup, and verification of presorted and bulk mailings. Client hereby acknowledges that additional production steps subsequently performed by Client or third parties may result in the loss of names and/or result in the rejection of the project for mailing, disallowance of discounts or the assessment of postal penalties resulting from additional production steps performed by Client or such third party.
4. Grant of License.
4.1. Foundation Media Group hereby grants licenses to Client as follows:
4.1.1. With respect to the address information, returned to Client after undergoing Foundation Media Group’s address hygiene processing, Client is granted a non-exclusive, irrevocable, perpetual, royalty-free license to use such information for its own business purposes; provided, however Client shall not use such information to provide address hygiene services to any third parties.
4.1.2. With respect to any other Foundation Media Group Data provided to Client (e.g. prospect Lists, email lists, demographic data elements, herein the “Limited License Data”) Client is granted a non-exclusive, limited license to use such information in connection with its marketing activities during the term of this Agreement but in no event for a period of less than 12 months.
4.1.3. Upon the termination or expiration of this Agreement, (i) Client shall discontinue using the Limited Licensed Data and destroy or return to Foundation Media Group the Limited License Data in its possession and provide Foundation Media Group with a certification that all Limited License Data has either been returned to Foundation Media Group or destroyed, provided, however, that Client shall have no such obligation to discontinue its use of, destroy, or return any Client Data (including address information after hygiene processing); and (ii) Client shall pay to Foundation Media Group, in accordance with the terms hereof, all fees and charges, if any at that time, which are accrued up to the effective date of the termination or expiration and not have not yet paid hereunder.
4.2. Client agrees that it will use Foundation Media Group Data only for its own marketing purposes and shall not resell, transfer or provide the Foundation Media Group Data in any form to any non-affiliated third party other than a subcontractor performing services for Client provided such subcontractor is prohibited from using or disclosing the Foundation Media Group Data contrary to the terms of this Agreement.
5. Payments to Foundation Media Group
5.1. Payment Terms. Client will pay Foundation Media Group for the Services in the amounts agreed upon and set forth in the applicable Foundation Media Group Work Order and/or the Foundation Media Group Pricing Schedule A (if applicable). Foundation Media Group's invoices will be deemed to be correct and acceptable to Client unless Client advises Foundation Media Group of disputed items within ten (10) days of their receipt. If Client fails to pay any invoice (or any undisputed portion of an invoice) in accordance with the foregoing terms, Foundation Media Group reserves the right to suspend performance of any and all Services until such outstanding amounts have been received, and Client shall also pay Foundation Media Group’s costs related to collection and interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by law. Each broadcast will be billed individually.
5.2. Additional Assurances. If at any time during the term of this Agreement, it reasonably appears to Foundation Media Group that Client may be unable or unwilling to fully perform its obligations under this Agreement (including, but not limited to, payment of amounts due) such that Foundation Media Group has reasonable grounds for insecurity, Foundation Media Group may, by written notice to Client, set forth such grounds and require from Client additional assurances of performance. If Client fails to provide such assurances within the time specified by Foundation Media Group, Foundation Media Group may treat such failure as a material breach of this Agreement and exercise all appropriate remedies including termination.
5.3. Shipping Costs; Taxes. The prices and rates for the Services do not include shipping costs or applicable federal, state or local taxes, and Client will pay or reimburse Foundation Media Group for such shipping costs and taxes. Foundation Media Group will show the amount of all such charges separately on its invoices to Client.
6. Definitions
6.1. "Authorized End User” means the individual or business specifically identified by Client, accepted by Foundation Media Group, and reflected in Foundation Media Group's Work Order. If no Authorized End User is identified by Client, Client is deemed to be the Authorized End User of the Foundation Media Group Data.
6.2. A "Broker" is understood to mean an individual or business who is acting on behalf of a single client with respect to each order for data or services placed by such Broker and who does not distribute such data or services, or information products or services derived from such data, to multiple recipients.
6.3. "Client Data" means data that Client provides to Foundation Media Group for file enhancement or other processing services.
6.4. "Data Enhancement" shall mean the matching of a Client owned, licensed, or rented file to Foundation Media Group Data for the purposes of overlaying specified Foundation Media Group owned geographic, email address, demographic, or other criteria to the Client-supplied records.
6.5. "Database Services" shall mean Foundation Media Group's performance of various Services relating to Client's database including but not limited to the construction, updating, and maintenance of Client's database at Foundation Media Group's facilities.
6.6. "End Users" shall mean individuals or businesses (in the form of any legal entity) whose use of the Foundation Media Group Services is for their own business purposes and not for the purpose of rendering or reselling information services to third parties.
6.7. "Foundation Media Group Data" means any data, which Foundation Media Group provides to Client or Client's designee in performing Foundation Media Group Services except for Client Data.
6.8. A "List" shall mean a selection of names and addresses meeting specified geographic, demographic, or other criteria from Foundation Media Group's compiled prospect databases.
6.9. "List Rentals" shall mean a selection of names and address meeting specified geographic, demographic, or other criteria from Foundation Media Group's compiled prospect databases for one-time use.
6.10. "Processing Services" shall mean Foundation Media Group's performance of various Services including but not limited to the manipulation, enhancement, or suppression of client owned, licensed, or rented data in connection with Client's own marketing programs.
6.11. "Prospect File Overlay" shall mean Foundation Media Group's Data Enhancement of a Client owned, licensed, or rented prospect file for the purpose of selecting or omitting records.
6.12. A "Reseller" shall mean any individual or business, which obtains data from one or more third party, sources and subsequently provides such data, or information products and services derived from such data, to one or more third parties. A Broker shall not be considered a Reseller, so long as the Broker is acting on behalf of a single Authorized End User and does not distribute data, or information products or services derived from such data, to multiple recipients.
6.13. "Special Use Riders" shall mean addenda, which describe special circumstances, procedures, or applications involving the provision of Foundation Media Group Services.
6.14. A "Third Party Processor" shall mean any individual or business which will receive Foundation Media Group Data on behalf of an Authorized End User in order to perform Processing Services for the Authorized End User including, without limitation, letter shop, advertising and mailing services.
6.15. An "Update" shall mean Foundation Media Group’s re-provision of certain Foundation Media Group Data or Services to reflect modifications made by Foundation Media Group or its contractors.
7. Do-Not-Call Compliance
7.1. General. This Section 7 shall apply only if (1) as part of the Foundation Media Group Data or Foundation Media Group Services, Foundation Media Group provides Client with telephone numbers to be used by Client or a third party acting on Client’s behalf for telemarketing solicitations or (2) Foundation Media Group provides do-not-call suppression services to Client. Each party agrees to comply with all applicable telemarketing laws and regulations, both international state and federal, including but not limited to the federal Telemarketing Sales Rule, 16 CFR Sect. 310 and to use the do-not-call information obtained from the Registry only for purposes of complying with the Rule.
7.2. Foundation Media Group Obligations. To support the activities described in Paragraph 7.1, Foundation Media Group agrees that it will use commercially reasonable efforts to maintain a do-not-call suppression file, the currency of which meets or exceeds federal requirements; provided, however, Foundation Media Group does not warrant or guaranty that all do-not-call names have been identified in a Client provided List or suppressed from a prospect List provided by Foundation Media Group.
7.3. Client Obligations: Represents that it has, or agrees that it will, register as a “seller” with the FTC, obtain a Subscriber Account Number and pay the requisite fees for the area codes for which Client has registered and to further provide the Subscriber Account Number information to Foundation Media Group.
8. Data Restrictions
8.1. Client Data. Foundation Media Group agrees that it will use Client Data only for the purpose of performing the Foundation Media Group Services ordered by Client and will not disclose Client Data to any third party except as directed by Client or as necessary to perform the Foundation Media Group Services. Unless otherwise agreed and reflected in the Foundation Media Group Work Order, Foundation Media Group will return or destroy all Client Data upon completion of the Foundation Media Group Services.
8.2. Internet Data Usage. Foundation Media Group Data provided under this Agreement to Client shall not be utilized by Client in any Client Internet application or Internet Website without prior express written consent of Foundation Media Group.
8.3. Data Overlay/File Enhancement. Foundation Media Group Data supplied for overlay or Enhancement shall be used solely for the following purposes: i) direct mail or email solicitations, ii) conducting telephone solicitations, and/or iii) conducting telephone surveys. This shall not, however, prevent Client's use of Foundation Media Group Data for internal analysis or for previous mail suppression. Client certifies that the Client file to which Foundation Media Group Data is being appended contains no names of persons under the age of eighteen (18). If such Client file contains such names, Foundation Media Group shall not be responsible for, and shall have no liability in connection with, Client's use of such names. Certain Foundation Media Group Data may be withdrawn from Client use at Foundation Media Group’s sole discretion, and Client agrees to immediately cease any use of such withdrawn Foundation Media Group Data upon notice from Foundation Media Group.
8.4. One Time Use, List Rentals. Unless otherwise agreed, and reflected in the Foundation Media Group Work Order, Client is permitted to use a List provided by Foundation Media Group only once and only for one of the following purposes: i) direct mail solicitations, ii) conducting telephone solicitations, or iii) conducting telephone surveys, iv) email campaigns. In no event will Client use the Foundation Media Group Data in solicitations or surveys conducted more than one (1) year after delivery of the Data. This shall not, however, prevent Client's use of a list provided by Foundation Media Group, or the Foundation Media Group Data, only for Client's internal analysis or for previous mail suppression. Foundation Media Group may include seed names for the purpose of detecting unauthorized use.
8.5. Resale Prohibition. Client acknowledges that the Foundation Media Group Data provided to Client is proprietary and confidential to Foundation Media Group and Client represents and warrants that it is not a Reseller. Client agrees that it will not copy or otherwise reproduce any Foundation Media Group Data except as necessary for back up or security purposes. Client further agrees that it will not resell, or otherwise provide or disclose to any third party, any Foundation Media Group Data, in whole or in part, for any purpose whatsoever. Under no circumstances will Client attempt, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Foundation Media Group in performing Foundation Media Group Services.
8.6. Manner of Use. Client agrees that it will use the Foundation Media Group Data provided under this Agreement for marketing purposes only in accordance with all country-specific, federal, state and local laws, Can Spam Act of 2003 applicable Direct Marketing Association Guidelines (www.the-dma.org), and in a manner which gives due consideration to matters concerning privacy and confidentiality. Clients will not in any direct mail solicitation, telephone solicitation, or survey utilizing Foundation Media Group Data refer to any selection criteria or any presumed knowledge about the recipient. The Foundation Media Group Data may not be merged or incorporated with any other file without the express written consent of Foundation Media Group. None of the Foundation Media Group Data may be used to enhance a file or list owned by any third party, to develop any list, enhancement or product or to prepare, publish, clean or maintain any directory.
8.7. Opt-Outs. Client agrees to employ processes and business practices, consistent with industry standards, which will enable Client to abide by the opt-out requests of consumers.
8.8. Copy Review. Client agrees that under any of the circumstances described below, Client will provide Foundation Media Group with a copy of any direct mail solicitation, telephone script for review, email solicitation, and approval prior to conducting any associated solicitation or survey utilizing Foundation Media Group Data. Such review shall be for the purpose of ensuring consistency with the restrictions set forth in this Services Agreement. With respect to Prospect File Overlay/Enhancements and List Rentals, Client will provide a copy: (i) automatically, without request, if the solicitation involves or utilizes children, smoker, health, motor vehicle, or such other information as may be identified by Foundation Media Group and (ii) upon request by Foundation Media Group for solicitations or surveys involving other Foundation Media Group Data. With respect to Overlay/Enhancement Services to a Client file, Client shall provide a copy upon request by Foundation Media Group. With no liability to Client, Foundation Media Group may delay shipment of any Client order in the event Client fails to provide such items as required under this Agreement and may cancel or terminate any Client order if, in Foundation Media Group’s sole judgment, the subject mail pieces or scripts fail to meet the requirements of this Services Agreement, in particular, Paragraph 8.6.
8.9. Audit. Client will maintain current, accurate, and complete books and records relating to its use of Foundation Media Group Data for a period of at least twelve (12) months after each marketing communication. Client shall maintain a file of the latest twelve (12) months of communications, to include sample mail pieces, telemarketing scripts, ad copy, or other communications that Client has used, and a list of each state to which the marketing communication is made. Foundation Media Group or any representative it designates, will have the right to examine and copy or make extracts from all such books and records and any source documents used in preparation thereof, at any time during normal business hours, provided Foundation Media Group gives Client written notice at least three (3) business days prior to any such examination.
8.10. Security. Client shall provide for physical security of Foundation Media Group Data with the same degree of care (provided that such is at least a reasonable degree of care) that Client uses to protect its own most sensitive data. Client shall not grant access to the Foundation Media Group Data to individuals incarcerated in prisons or correctional institutions.
8.11. FCRA. Client understands that Foundation Media Group Data has not been collected for credit purposes and is not intended to be indicative of any consumer's credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act ("FCRA"), 15 USC Section 1681a. Client represents and warrants that it shall not use any Foundation Media Group Data as a factoring establishing any consumer's eligibility for (i) credit or insurance used primarily for personal, family or household purposes, (ii) employment purposes, or (iii) other purposes authorized under Section 604 of the FCRA, 15 USC Section 1681 b or any similar statute.
8.12. Additional Restrictions. Client will also comply with any additional restrictions placed upon the use or disclosure of Foundation Media Group Data (i) as agreed upon and set forth in the applicable Foundation Media Group Work Order, Amendment or Supplemental Terms to this Agreement (ii) and, upon written notification from Foundation Media Group, such additional restrictions that have been placed upon Foundation Media Group by third parties including government agencies or Foundation Media Group’s data sources. In the latter event Client may request, and Foundation Media Group will not unreasonably refuse, that an equitable adjustment be made in the price paid for the Foundation Media Group Data affected by such restrictions to the extent such restrictions reasonably lessen the value of such data to Client.
8.13. Retained Ownership. Client acknowledges that Foundation Media Group has expended substantial time, effort and funds to gather and compile its various databases and provide the Foundation Media Group Services which are the subject of this Agreement and further acknowledges that the data provided by Foundation Media Group hereunder is, and shall remain, the proprietary property of Foundation Media Group. Nothing contained in this Agreement shall be interpreted to convey to Client or to any other party any right, title or interest in the Foundation Media Group Data or Foundation Media Group Services, including any patent, copyright, or other proprietary right. All data provided by Client to Foundation Media Group is, and shall remain, the property of Client. Neither party will use, or permit their respective employees, agents and subcontractors to use, the trademarks, service marks, logos, names or any other proprietary designations of the other party, or the other party's affiliates, whether registered or unregistered, without such other party's prior written consent.
9. Warranties, Remedies and Indemnification
9.1. Mutual Representations and Warranties. Each party hereby represents and warrants to the other party that (a) it has the full right, power and authority to enter into and perform this Agreement, and (b) this Agreement has been duly authorized, executed and delivered and constitutes the valid and binding obligation of each party enforceable in accordance with its terms.
9.2. Warranties and Limitations by Foundation Media Group.
9.2.1. Warranties. Foundation Media Group warrants to Client that it has the right to provide Foundation Media Group Data to Client for the uses authorized by this Agreement. Foundation Media Group further warrants that it will make reasonable commercial efforts to ensure that the Foundation Media Group Data delivered to Client hereunder and information contained therein will be as complete, accurate, and current as it can be in view of Foundation Media Group’s customary method of compilation or acquisition of such data and the nature and accuracy of Foundation Media Group’s sources for such data. HOWEVER, Foundation Media Group DOES NOT GUARANTEE THE ACCURACY OR RELIABILITY OF SUCH DATA OR THE RESULT OR CONSEQUENCES FROM THE USE OF SUCH DATA. THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES Foundation Media Group HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
9.3. Limitation of Remedies – Non-Conforming Data or Services. Foundation Media Group’s sole liability hereunder for non-conforming Data or Services, as Foundation Media Group may elect, regardless of the form of action, will be either (i) Foundation Media Group’s re-performing the non-conforming Services (or re-providing the Foundation Media Group Data) or (ii) the adjusting any fees Client has paid for such non-conforming Services or Foundation Media Group Data according to the value, if any, of such Services to Client.
9.4. Disclaimer of Damages. EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH 9.4, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, COSTS OF COVER, POSTAL CHARGES OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES, FOR BREACHING THE RESTRICTIONS IN THIS AGREEMENT UPON THE USE OR DISCLOSURE OF Foundation Media Group DATA, CLIENT DATA OR BREACHING SECTION 7 (Do-Not-Call Compliance) OF THIS AGREEMENT.
9.5. Indemnification. Each party specifically acknowledges that the terms, conditions and License Fees set forth in this Agreement are predicated, in part, upon the allocation of risks set forth in this Paragraph 9.5.
9.5.1. By Client. Client agrees to indemnify and hold Foundation Media Group harmless from and against any and all losses, claims, damages and liabilities which Foundation Media Group may suffer or incur based upon any third party claim, charge or suit instituted against Foundation Media Group arising out of or resulting from: (i) Client’s or its customers’ violation of laws in using the Foundation Media Group Data; and (ii) any unauthorized use of the Foundation Media Group Data by Client or any third party having access to same by, through or under Client; provided, however, this indemnification obligation shall not extend to third party claims arising out of a breach of this Agreement by Foundation Media Group or a third party claim as described in Paragraph 9.5.2 below.
9.5.2. Title Indemnity. Foundation Media Group shall defend, protect, indemnify and hold Client harmless against all costs, expenses and damages attributable to any third party claim, charge or suit instituted against Foundation Media Group arising out of or resulting from: (i) Foundation Media Group’s violation of laws in providing the Foundation Media Group Data to Client; (ii) allegations that providing the Licensed Data to Client and Client’s use of the Licensed Data in accordance with the terms of this Agreement infringes on any United States patent, copyright, or other intellectual property or privacy right of any third party, provided that Foundation Media Group is given prompt notice and full control over the defense of any such claim and receives Client’s full cooperation (at Foundation Media Group’s sole expense) in the defense thereof. Notwithstanding the foregoing, Foundation Media Group will have no obligation for infringement indemnity to the extent any claim of infringement is based upon (i) Client’s use of other products not furnished directly by Foundation Media Group; (ii) Client’s use of the Licensed Data in a manner not contemplated herein; or (iii) any change or modifications made by or on behalf of Client to Licensed Data by a party other than Foundation Media Group (collectively, “Excluded Claims”). In connection with any such claim of infringement other than any Excluded Claims, Foundation Media Group may, at its option, (a) secure a right or license to allow Client to continue using the Licensed Data; (b) modify the Licensed Data or the use thereof to avoid the claim; (c) provide other non-infringing data or services that are the equivalent of the Licensed Data; or (d) if none of these alternatives is available on commercially reasonable terms, terminate this Agreement. THE FOREGOING STATES Foundation Media Group’s ENTIRE LIABILITY TO CLIENT FOR ANY CLAIM OF INFRINGEMENT OF ANY PROPRIETARY RIGHTS ASSERTED BY A THIRD PARTY.
9.5.3. Notice. Each party agrees to notify the other party in writing of any such claim, action, proceeding or demand as soon as reasonably practicable upon receipt of knowledge of same and afford the indemnifying party the opportunity to defend or participate in the defense of such claim, action proceeding or demand, and further, each party agrees that no settlement or payment of any claim, action, proceeding or demand shall be binding upon the indemnifying party, unless prior approval and consent is obtained from the indemnifying party, which consent shall not be unreasonably withheld. In addition thereto, the indemnified party shall cooperate with the indemnifying party in every reasonable manner (at the indemnifying party’s sole expense) to facilitate the defense of any claim, charge, or suit brought hereunder.
10. Miscellaneous
10.1. Amendments. This Agreement may be amended at any time but only by a written agreement which refers expressly to this Agreement and which is signed by both parties.
10.2. Immediate Termination. This Agreement may be terminated by Foundation Media Group immediately upon written notice to Client if Client fails to make any payment hereunder when due or, if in Foundation Media Group 's reasonable judgment, any Foundation Media Group Data provided to Client is being used or disclosed contrary to this Services Agreement. Termination of this Agreement shall not relieve Client of its obligation to pay for any Services performed or provided by Foundation Media Group under this Agreement and any and all restrictions upon the use or disclosure of Foundation Media Group Data shall survive any termination of this Agreement for any reason.
10.3. Waivers. Either party may waive compliance by the other with any covenants or conditions contained in this Services Agreement, but only by written instrument signed by the party waiving such compliance. No such waiver, however, shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
10.4. Promotional Release. Client must submit for Foundation Media Group's prior approval all advertisements, promotional or marketing material which names Foundation Media Group or refers to the use of Foundation Media Group Data or Foundation Media Group facilities. Foundation Media Group approval must be obtained prior to release or publication of such advertisements, promotional or marketing materials.
10.5. Binding Arbitration. If the parties to this Agreement are unable to resolve any dispute arising out of or relating to this Agreement, orders placed by Client under this Services Agreement, or the parties' respective rights or performance obligations hereunder, then the parties will resolve such dispute in a binding arbitration under the auspices of the American Arbitration Association in City of Ft. Lauderdale, State of Florida. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees and costs. This binding arbitration commitment shall not, however, prevent either party from seeking equitable or injunctive relief in a court of appropriate jurisdiction.
10.6. Confidentiality. Foundation Media Group hereby identifies as proprietary and confidential its various databases and the Foundation Media Group Data contained within such databases as well as the methods utilized by Foundation Media Group in gathering, compiling and maintaining such data or in providing the Services. Client hereby identifies as proprietary and confidential any Client Data provided to Foundation Media Group by Client for file enhancement or other Foundation Media Group Services. Each party will take reasonable precautions to assure that all confidential information disclosed to it by the other party is held in strict confidence and disclosed only to those of their respective employees whose duties reasonably require access to such information. Each party will take suitable precautions to prevent loss, compromise, or misuse of any media containing consumer information while in the possession of either party and while in transport between the parties.
10.7. Relationship. The parties will perform all services hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties. Neither this Agreement nor any provisions set forth herein is intended to, or shall, create any rights in or confer any benefits upon any person other than the parties hereto. This Agreement is binding upon and shall inure to the successors of each of the parties hereto. However, Client shall not assign this Agreement without the express, written consent of Foundation Media Group, which consent shall not be unreasonably withheld.
10.8. Excusable Delays. Neither party shall be liable for any delay or failure in its performance under this Agreement if and to the extent which such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, earthquakes, flood, epidemics, riots and strikes. If a party becomes aware that such an event is likely to delay or prevent punctual performance of its own obligations, the party will promptly notify the other party and use its best effort to avoid or remove such causes of nonperformance and to complete delayed job whenever such causes are removed.
10.9. Governing Law. This Agreement is governed by and construed in accordance with the internal substantive laws of the State of Florida. Except for the arbitration of any dispute pursuant to paragraph 10.5, both parties hereby consent to the jurisdiction of the courts, whether federal, state, or local, with respect to actions that arise out of or relate to this Services Agreement.
10.10. Notices. All notices, requests and other communications hereunder shall be in writing and shall be acknowledged at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three (3) days after mailing registered or certified mail, return receipt requested, with postage prepaid. Notices to Foundation Media Group, Inc. shall be addressed to:
Foundation Media Group, Inc.
2881 E. Oakland Park Blvd
Suite 219
Ft. Lauderdale, FL 33306
Telephone: 954-707-5037
Attn: SVP Sales
10.11. Complete Agreement. This Agreement (as supplemented by Foundation Media Group Work Orders and/or any referenced attachments) sets forth the entire understanding of Client and Foundation Media Group with respect to the subject matter hereof and supersedes all prior letters of intent, agreements, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer, employee, or representative of either party relating thereto. No terms, provisions, or conditions of any Client purchase order, acknowledgment, or other business form that Client may use will serve to alter or have any affect on the terms of this Services Agreement. No amendment or modification hereof shall be binding unless in writing and dually executed by both parties.
IN WITNESS WHEREOF, Client and Foundation Media Group execute this Agreement to be effective on the Effective Date above.
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