- DataKindness is to provide files which can include up to the following information for Reveal: First Name, Last Name, Postal Address, Zip Code, Email Address, URL of Landing Page, Date of Visit, (URL of Original Opt In ‘One of 12,000+ co-reg sites’, Date of Original Opt In, IP of Opt In is delivered on an as-needed basis to Company) this constitutes a “Lead”.
- A compilation of Leads constitutes a List. Lists will be provided on a daily (business days) or other basis as agreed to between the Parties.
- Lists can also be compiled into a shared Google Sheet where Client can use services such as Zapier to pull the data in real time into their CRM or email marketing systems.
- DataKindness represents and warrants that the email fields of the Leads are as accurate as possible and it shall provide the services in a professional and workmanlike manner.
- DataKindness warrants that it has authority to enter into this Agreement.
- DataKindness will provide customer service and technical support in a timely manner.
- Client will be responsible for its sales and marketing costs.
- Client is responsible for all communications and branding with their prospects and their clients.
- Client must abide by all federal laws including but not limited to CAN-SPAM, and all state and local laws including but not limited to California’s CCPA.
- Client will work with DataKindness on integration and method of data transfer.
- Client must notify DataKindness of any major changes.
Terms and Termination
- This Agreement will have a term of one (1) year from the Effective Date (the “Term”) and shall automatically renew for additional one (1) year terms unless terminated by either Party as provided in this section. Upon termination, the terms of this Agreement shall terminate, except those sections that one would expect to survive termination. If either Party is in breach of this Agreement the non-breaching party may immediately terminate this Agreement unless breach is cured within 10 days. Either party may terminate this Agreement for any reason, upon 30 day written notice. After termination or allowed expiration of this Agreement, DataKindness reserves the right to contact participants directly to determine if they would like to continue the use of the DataKindness Program via direct relationship. In the case of termination by either party, all data supplied up to the time of termination will be fulfilled and paid for according to the terms of this Agreement.
Pricing and Payment Terms
- Client agrees to the pricing and payment terms as described in Exhibit A which is attached and incorporated hereto by this statement.
- All trademarks, patents, copyrights, technology, process, the underlying source data, algorithms, source code, computer scripts, the DataKindness pixel, and other intellectual property rights are owned by DataKindness and shall continue to be owned solely by DataKindness. Nothing herein shall be deemed to confer, transfer, license, or in any way convey any rights to any intellectual property to Client with the exception of the List(s) which become the property of Client upon prompt payment in full to DataKindness.
Agency & Non-Circumvention
- It is the intention of the Parties that they work together whereby Client agrees to work exclusively with DataKindness with the understanding that DataKindness provides its services on a non-exclusive basis to Client. However, DataKindness shall not interfere in Client’s relationship with its customers specifically, but not limited to, referring said customers to other service partners.
- Client agrees it shall not make any effort to circumvent, avoid, bypass, or obviate, directly or indirectly DataKindness, its Intellectual Property, processes, technology, and/or business model. Client shall not attempt to reverse engineer DataKindness’s software, processes, or technology. Further, Client shall not attempt to create any new business opportunity resulting in circumvention of this Agreement or DataKindness’s relationship with its resellers or other clients.
- Confidential Information: Any and all data provided to Client by DataKindness with the exception of the List(s) and invoices shall be considered Confidential Information. This includes without limitation any scripts, pixels, software code, business methods, and any other data of any sort.
- Permitted Uses and Disclosures: During the term of this Agreement, the parties may share Confidential Information with each other. The Recipient shall use the Discloser’s Confidential Information only for evaluating current or potential business opportunities between the parties. The Recipient shall disclose Confidential Information only to those individuals who need access to the Confidential Information for such purpose (Representatives”). If any one or more Representatives of the Recipient disclose or use Confidential Information other than as authorized in this Agreement, the Recipient will be liable to the Discloser for that disclosure or use to the same extent that it would have been had the Recipient disclosed or used that Confidential Information.
- Handling of Confidential Information: Both, the Recipient and Discloser shall protect Confidential Information with at least the same degree of care that it uses to protect its own Confidential Information, which must be at least a reasonable degree of care. Upon request, the other party shall promptly return or destroy any Confidential Information in its possession. The party must promptly notify the other, in writing, of any unauthorized disclosure of the Confidential Information, and shall assist in obtaining the return or destruction of such Confidential Information.
- Source of Data: Client shall treat as Confidential Information the fact that it receives Data from DataKindness, except in response to an inquiry from a consumer who is the subject of a particular lead which includes DataKindness Data.
List Usage Requirements & Restrictions
- Upon Client purchase of Data per the Client DataKindness Pixel, DataKindness grants Client a non-exclusive, limited, license to use the data for its clients marketing programs and analytics by client for unlimited use. Client agrees to always and only use the data in accordance and compliance with each of the following (collectively, the “Regulations”):
- The Data & Marketing Association’s (DMA) self-regulatory guidelines covering but not limited to privacy, ethical use, and Fair Information Practices.
- The Federal Communications Commission’s (FCC) CAN-SPAM Act.
- California’s consumer privacy laws referred to the CCPA
- Any and all other laws, regulations, and guidelines related to individuals’ data privacy, child data protection, and direct marketing
- Client shall maintain administrative, physical, and technical safeguards that are no less rigorous than accepted data industry practices in order to prevent the release of any PII to unauthorized parties. Client may not use the Data to advertise, sell, or exchange any products or services relating to illegal or illicit activities.
Limitation of Liability and Disclaimer
- In no event shall DataKindness’s total liability under this Agreement exceed the amount paid by Client to DataKindness during the twelve months prior to the incident giving rise to liability. The Leads and Lists are provided on an AS IS – WHERE AS basis. DataKindness makes no representation or warranty, expressed or implied, other than stated herein including any warranty of fitness for a particular purpose.
- DataKindness MAY NOT BE HELD LIABLE TO CLIENT, SUBCLIENTS, OR TO ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF DataKindness IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.
- CLIENT ACKNOWLEDGES THAT DataKindness HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THE AGREEMENT.
- DATA SERVICES ARE PROVIDED BY DataKindness ON AN “AS-IS” BASIS. ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
- Neither party may assign this Agreement without the other’s consent, EXCEPT in the event of a change of control, in which case the Agreement is freely assignable, provided that the assigning party shall promptly notify the other party in writing of such an event and the non-assigning party shall have the right to immediately terminate this Agreement by written notice to the assigning party.
- Neither party will be liable to the other for any failure of performance of its obligations under this Agreement if the failure is due to an event beyond the party’s control, including without limitation government action, fire, flood, acts of war or terrorism, and internet or power outages. The affected party shall make reasonable efforts to mitigate the effects of the event, and shall promptly notify the other party of the nature and extent of the event.
Entire Agreement, Modification
- This Agreement is the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all other Agreements, whether written or oral, between the parties. For an amendment to this agreement to be effective, it must be in writing and the parties must sign it.
- The parties intend that if any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement will remain enforceable.
- A failure by a party to enforce any provision of this Agreement against the other party does not constitute a waiver of that provision. No waiver of any provision of this Agreement is binding unless set forth in writing that expressly states the waived provision and that is signed by the waiving party. No such waiver shall constitute a waiver of any other provision.
Choice of Law and Venue
- This Agreement and any action related thereto will be governed by the laws of the State of Arizona. Any disputes that arise under or in relation to this Agreement shall be resolved in the state and federal courts of the State of Arizona. All parties expressly consent to the personal jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.