Updated: January 16th, 2015
1.1. Services: Business consulting and marketing services, including providing Sales Intelligence.
1.2. Sales Intelligence: Insights on people and companies provided to You by List Partners Inc. in connection with the Services.
1.3. Initial Term: The Initial Term of this Agreement will be set out in the Purchase Order.
1.4. Authorized Users: Officers or employees who may access or use the Services or Sales Intelligence who are registered with List Partners Inc.
1.5. Services Fee: The annual fee You will pay to List Partners Inc. for the Services as set out in the Purchase Order.
2.1. List Partners Inc. will provide you with the Services during the Term of and on the terms and conditions set forth in this Agreement.
3.1. You may use the Services only for your internal business requirements and performing administration functions related to those business requirements.
3.2. You will not allow any third parties to use the Services.
3.3. Only Authorized Users may receive and use the Services. Authorized Users may not share any passwords or other information necessary to receive the Services with anyone.
3.4. You may add or remove Authorized Users at any time by speaking with your Account Manager at List Partners Inc., or at List Partners Inc.’s website.
3.5. If List Partners Inc. determines that you have exceeded the maximum number of Authorized Users as set forth on the Purchase Order, you will have two days to add the appropriate number of additional Authorized Users.
3.6. You are responsible for any and all activity by your Authorized Users regarding their access to and use of the Services.
3.7. The amount of Sales Intelligence Authorized Users may access is determined by the Purchase Order or displayed within the Service.
4. Protection of Sales Intelligence
4.1. Any Sales Intelligence you receive is the property of List Partners Inc. and constitutes valuable trade secrets. You acknowledge that List Partners Inc. derives value from the Sales Intelligence not being generally known.
4.2. You may view or print Sales Intelligence only for your own internal purposes. Your Authorized Users may not distribute Sales Intelligence to anyone other than Your officers, employees or agents. Authorized Users may not post any Sales Intelligence to any news groups, mailing lists, bulletin boards, websites, or business or social networking services. You will inform all of your Authorized Users of these restrictions.
4.3. The Sales Intelligence comprises: (i) works of original authorship, including compiled information containing List Partners Inc.’s selection, arrangement and coordination and expression of such Sales
Intelligence or pre-existing material it has created, gathered or assembled; (ii) trade secret and other confidential information, including information that derives value or potential value from not being readily known or available; and (iii) information that has been created, developed and maintained by List Partners Inc. at great expense, such that misappropriation or unauthorized use by others for commercial gain would unfairly and/or irreparably harm List Partners Inc. or reduce List Partners Inc.’s incentive to create, develop and maintain the Sales Intelligence and provide the Services. You will not commit or permit
any act or omission that would contest or impair List Partners Inc.’s proprietary and intellectual property rights in the Sales Intelligence, that would cause the Sales Intelligence to become generally known, or that would cause the Sales Intelligence or List Partners Inc. to infringe the proprietary or intellectual property rights of a third party.
4.4. You may distribute Sales Intelligence within Your company solely for your own exclusive, confidential and internal use during the term of the Agreement. You will comply with all applicable Federal and state laws, including without limitation those laws concerning fax broadcasts, email transmissions (in particular the CAN-SPAM Act and Canada’s Anti-Spam Law, including the creation and proper use of house email suppression lists), and direct marketing. You are specifically prohibited from: (a) sending commercial electronic messages without the recipient’s consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone where applicable (b) using or permitting the use of Sales Intelligence to prepare an original database or to compare List Partners Inc.’s Services with comparable services provided by others; (c) using or permitting the use of Sales Intelligence for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, business directory, or other compilation of information that is sold, rented, published or furnished in any manner to a third party; or (d) using or permitting the use of Sales Intelligence in connection with any
individual credit, employment or insurance applications.
4.5. You may not use any automated processes to access the Services, such as spiders, bots or scrapers.
4.6. List Partners Inc. may monitor Your Authorized Users to ensure compliance with this Agreement’s terms and conditions. If You or your Authorized Users violate or threaten to violate any provision contained in this Section, such violation or threatened violation will cause irreparable injury to List Partners Inc. and the remedy at law for any such violation or threatened violation may be inadequate. In the event of such violation or breach, List Partners Inc. will be entitled to an immediate injunction against further improper use or distribution of the Sales Intelligence, in addition to all other rights and remedies available to it, including, without limitation, recovery of damages.
5.1. You will pay the annual Services Fee for each Authorized User agreed upon by You and List Partners Inc.. Following the Initial Term, The List may change the Services Fees by notifying You of the change in writing at least thirty (30) days in advance.
5.2. Annual Services Fees are not refundable except as expressly provided for in this Agreement.
6. Term and Termination
6.1. The initial term of this Agreement is for twelve (12) months, unless stated otherwise in the Purchase Order.
6.2. This Agreement will automatically renew for subsequent twelve (12) month terms unless the Services are terminated.
6.3. Either Party may terminate this Agreement without cause on thirty (30) days written notice to the other Party.
6.4. List Partners Inc. may terminate this Agreement immediately, without further notice, for a violation of any provision of Sections 4 of this Agreement.
6.5. Either Party may terminate this Agreement on written notice of a material breach of any of the breaching Party’s obligations, restrictions, representations or warranties, provided, however, that the breaching Party shall have thirty (30) days from receipt of the notice to cure the breach.
6.6. Upon termination of this Services Agreement for any reason, You will immediately destroy any documents or electronically stored information containing Sales Intelligence, and will provide List Partners Inc. with documentation of such destruction upon request.
6.7. Upon termination of this Agreement for any reason, Your obligation to pay any future subscription fees is terminated. However, You will not be entitled to a refund of any subscription fees already paid to List Partners Inc. except as may be expressly provided herein.
7.1. List Partners Inc. may assign or transfer its rights and obligations under this Agreement at any time and without prior notice to You.
7.2. You may not transfer your rights under this Agreement to any third party. If You are merged, consolidated or sold, or if You sell or transfer all or substantially all of Your assets relating to the use of the Services, You may transfer Your rights and obligations under this Agreement to the surviving or buying entity only on prior written consent of List Partners Inc., and the successor must assume the terms and conditions of this Agreement in a manner acceptable to List Partners Inc.
8. Representations and Warranties
8.1. List Partners Inc. represents and warrants that: (i) it has the right and authority to grant this license and to provide the Services, (ii) the Services do not contain any time bomb, Trojan horse, virus or other harmful or disabling code, (iii) use of the Services and Sales Intelligence as permitted by this Agreement will not violate any third party’s intellectual property or proprietary rights, (iv) the Services shall be available at substantially all times and (v) the Services comply with all applicable laws, rules and regulations, plus the terms and conditions of third parties to which it is subject.
8.2. List Partners Inc. does not represent and warrant that the Sales Intelligence is entirely accurate or that it does not contain omissions or inaccuracies.
8.3. List Partners Inc. may provide links to third party web sites and references to products and services offered by third parties. These are provided for convenience only and do not constitute an endorsement or approval by List Partners Inc. of the organizations that operate such web sites or provide such goods or services or the goods and services provided. Because List Partners Inc. has no control or responsibility over web sites or services maintained or provided by other organizations, or for products and services offered by third parties, List Partners Inc. is not liable for Your use of any of the foregoing.
8.4. List Partners Inc. does not warrant that access to the Services shall be uninterrupted or error free or that it shall meet Your needs. You are solely responsible for the accuracy and integrity of Your own
instrumentation, reports, documentation and security.
8.5. The availability of the Services may depend on third parties. The List is not responsible if any such third party is unavailable or unable to fulfill its function to List Partners Inc., and such unavailability does not constitute a breach of this agreement by List Partners Inc.. List Partners Inc. will take reasonable steps to restore the Services in any such event.
8.6. If List Partners Inc. breaches any of its representations or warranties, Your exclusive remedy, and List Partners Inc.’s sole obligation, is to send you a pro rata refund of any unused portion of Your annual Services Fee.
8.7. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY List Partners Inc. WITH RESPECT TO THE SERVICES, SALES INTELLIGENCE, OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND List Partners Inc. SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.8. List Partners Inc., AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY,
COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES OR SALES INTELLIGENCE.
9. Limitations of Liability and Indemnification
9.1. IN NO EVENT SHALL List Partners Inc. BE LIABLE TO YOU, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST YOU BY ANY OTHER PARTY, EVEN IF THE LIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
9.2. NEITHER List Partners Inc. NOR ANY OF ITS AFFILIATES, AGENTS OR LICENSORS SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY ITS NEGLIGENCE OR CONTINGENCIES BEYOND ITS CONTROL IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING THE SERVICES.
9.3. IN NO EVENT WILL List Partners Inc., ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DECISION MADE OR ACTION TAKEN BY YOU AND/OR ANY THIRD PARTY IN RELIANCE ON THE SERVICES OR SALES INTELLIGENCE, OR FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
9.4. THE LIABILITY OF List Partners Inc., ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SERVICES OR SALES INTELLIGENCE PROVIDED BY List Partners Inc. SHALL NOT EXCEED THE AMOUNT YOU PAID TO List Partners Inc. FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. YOU MUST BRING ANY SUCH CLAIMS WITHIN 12 MONTHS OF THE FIRST TO OCCUR OF (A) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT, OR (B) THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIMS.
9.5. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS List Partners Inc., ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND ANY THIRD PARTY INFORMATION PROVIDERS FROM AND AGAINST ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING ATTORNEY’S FEES, ARISING FROM, RELATING TO, OR CONNECTED WITH ANY ALLEGED BREACH OF THESE TERMS BY YOU.
9.6. List Partners Inc. AGREES TO DEFEND, INDEMNIFY AND HOLD YOU AND YOUR PARENT, SUBSIDIARIES, OFFICERS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LOSSES, CLAIMS, ACTIONS, COSTS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RESULTING FROM ANY THIRD PARTY CLAIM THAT THE SERVICES OR SALES INTELLIGENCE PROVIDED BY List Partners Inc. IS THEIR TRADE SECRET(S), INFRINGES THEIR INTELLECTUAL PROPERTY RIGHTS, OR WAS COLLECTED OR DISTRIBUTED BY List Partners Inc. IN VIOLATION OF ANY APPLICABLE LAW OR CONTRACT, AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO DAMAGES ARISING FROM ANY SUCH CLAIM.
10.1 List Partners Inc. may change the terms of this Agreement at any time by notifying you of the change in writing or electronically. The changes also will appear in this document, which you can access at any time via List Partners Inc.’s website. You agree to be bound to such changes by using the Services after changes are made to this Agreement.
10.2 Force Majeure. Neither party shall be responsible for failures or interruptions of communications facilities or equipment of third parties, electricity shortages, blackouts, or power failures, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, acts of terrorism, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside its reasonable control.
10.3 Services communication. As part of providing You the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services, which you may not be able to opt-out from receiving.
If any provision of this License Agreement is invalid under applicable law, the remaining provisions will continue in full force and effect. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Georgia excluding its principles of conflicts of law. You consent to the jurisdiction of the applicable state and federal courts in Georgia for any legal action arising out of an alleged breach of this Agreement. If one Party obtains a judgment against the other Party in a legal action for breach of this Agreement, the breaching Party will pay all costs and expenses, including reasonable attorneys’ fees that the prevailing Party incurs. This Agreement constitutes the entire agreement between the parties, and may not be amended except in writing and signed by both parties hereto.