THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERNS THE ACCESS AND USE BY YOU (“LICENSEE”) OF THE CONTENT AND WEB MAP. [IF YOU REGISTER FOR A FREE TRIAL, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.]1 BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE [OR BY EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT]2, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE CONTENT OR WEB MAP. You may not access the Content or Web Map if you are a competitor to AdImpact (“Licensor”) or any of its affiliates. In addition, you may not access or use the Content or Web Map for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Content. Licensor operates a service whereby data pertaining to political campaigns is collected in a database from which reports may be generated and accessed through a website administered by or on behalf of Licensor (the “Web Map”) using proprietary analytical software. Such data and the reports generated in whole or in part therefrom are collectively referred to herein as the “Content.” Licensee desires to obtain the Content solely for the purposes described in this Agreement and Licensor desires to license the Content and grant access to the Web Map to Licensee for such purposes, each subject to the terms and conditions set forth herein. Licensor shall provide Licensee access to the Content through the Web Map during the Term (as defined in Section 3 of this Agreement).
2. License: Restriction On Use Of Content. Subject to the terms and conditions set forth herein, Licensor hereby grants to Licensee a non-exclusive, limited, and non-transferable license (the “License”) to use the Web Map and the Content solely for internal research purposes. Licensee may not (a) copy, print, download, screenshot, or save the Content in any manner; (b) modify the Content except as expressly permitted by this Agreement; (c) transmit, broadcast, or in any manner share the Content, or a copy thereof, to any third party, or (d) sell or sublicense the Content to any third party. Licensee may only make reference (visual, verbal, or otherwise) to Licensor or its affiliates in connection with any use of the Content or this Agreement if reasonably required to disclose data sources or to disclose Licensor’s ownership of any rights assigned pursuant to Section 6 of this Agreement.
3. Term. The term of this Agreement commences on the Effective Date and will continue until end of purchased term unless earlier terminated in accordance with Section 8 or Section 11(b) of this Agreement (the “Term”).
4. Fees; Payment. In exchange for the grant of the License, Licensee shall pay to Licensor [the fees set forth on Exhibit B hereto (the “Fees”) in accordance with the payment schedule contained therein]3.
5. Web Map.
a. Access. Commencing with the Effective Date, Licensor will provide Licensee a URL, username, and password to access and use the Web Map. Access to the Web Map via the assigned username and password will be restricted to a Licensee-designated IP Address. The license to access the Web Map shall terminate on the expiration of the Term.
a. All right, title and interest in the Web Map, the Content, and the Software and any copyrights and trademarks associated with any of the foregoing is retained solely by Licensor and any third party who provided the Software, as applicable, and nothing in this Agreement will restrict, impair, transfer, license, convey or otherwise alter or deprive Licensor or such third party of any rights or propriety interests in any of the foregoing or any intellectual property, content, data, information or any other materials or rights related thereto. To the extent Licensee creates any materials through the use of the Web Map, the Content, or the Software that includes reports or other materials provided by Licensor (“Licensee Data”), Licensee hereby grants to Licensor an exclusive (except as set forth in the immediately preceding sentence), assignable, irrevocable, perpetual, worldwide, sublicensable (through one or multiple tiers), royalty-free, fully paid-up, unlimited license to use, reproduce, distribute, create derivative works of, publicly display and digitally perform and display such materials, results or proceeds therefrom and all derivatives thereof in any media now known or hereafter known, including, without limitation, as part of the content made available through the Web Map to other customers of Licensor.
b. Feedback. Licensee may provide suggestions, comments or other feedback (collectively, “Feedback”) to Licensor with respect to its products and services, including the Web Map, the Content, and the Software. Feedback is voluntary. Licensor may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Licensee’s intellectual property rights to make use of the Feedback, Licensee grants Licensor an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Licensor’s business, including the enhancement of the Web Map, the Content, and the Software
7. Customer Service. Licensor shall provide customer service support to Licensee via e‑mail within [twenty-four (24) hours]4 of Licensee’s submission of an email request to Support@AdImpact.com.
a. Licensor’s Termination Right. Licensor may terminate this Agreement:
i. At any time upon thirty (30) days’ prior written notice to Licensee; or
ii. Immediately following Licensee’s breach of Section 2 or Section 12.
b. Termination for Cause. During the Term, either of the Parties may terminate this Agreement immediately upon the occurrence of any of the following events: (i) a breach by the non-terminating Party of its confidentiality obligations set forth in Section 12; (ii) a breach by the non-terminating Party of its obligations under this Agreement that remains uncured for more than thirty (30) days after such non-terminating Party has received written notice thereof; (iii) the institution of proceedings under bankruptcy or insolvency laws, for corporate reorganization, receivership, dissolution or similar proceedings against the non-terminating Party that remain pending for more than ninety (90) days after the initiation thereof; (iv) the non-terminating Party makes an assignment for the benefit of creditors; or (v) the non-terminating party becomes insolvent.
c. Termination of this Agreement shall not affect obligations of the Parties that accrued prior to such termination. Notwithstanding anything in this Agreement to the contrary, Sections 4, 6, 10, 11, 12 and 13 of this Agreement will survive termination or expiration of this Agreement indefinitely. Upon the termination or expiration of this Agreement, Licensee will immediately cease using the Web Map and the Content and return or destroy (at the direction of Licensor) any copies of the Content and any materials derived therefrom. In the event that Licensor terminates this Agreement pursuant to Section 8(a)(ii) or 8(b)(i), Licensee shall immediately pay to Licensor any unpaid portion of the Fees, whether or not due and owing to Licensor at the time of such termination.
d. Suspension of Services. Notwithstanding any other provision of this Agreement to the contrary, Licensor may, in its sole discretion, suspend Licensee’s access to the Web Map, the Content, and the Software, for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Web Map, the Content, and the Software; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Licensor from potential legal liability; (d) in the event of Licensee’s breach of Section 2 or Section 12; or (e) in the event an invoice remains unpaid for more than thirty (30) or more days from date such invoice is due. Licensor will use reasonable efforts to provide Licensee with notice prior to or promptly following any suspension of access to the Web Map, the Content, and the Software. Licensor will restore access to the Web Map, the Content, and the Software as soon as the event giving rise to suspension has been resolved. This Section 8(d) will not be construed as imposing any obligation or duty on Licensor to monitor use of the Web Map, the Content, and the Software.
9. Representations and Warranties. Each Party represents and warrants to the other Party that this Agreement is a valid and legally binding obligation enforceable against such Party.
a. Disclaimer of Representations and Warranties. LICENSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, REGARDING ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY OR USEFULNESS OF THE CONTENT, THE UNDERLYING INFORMATION FROM WHICH THE CONTENT IS OBTAINED, OR THE WEB MAP. USE OF THE WEB MAP AND THE CONTENT MADE AVAILABLE UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM CONTAMINATION BY COMPUTER VIRUSES OR HACKERS ARE DISCLAIMED. IN NO EVENT SHALL LICENSOR OR ITS AGENTS, EMPLOYEES, OFFICERS OR AFFILIATES BE LIABLE FOR DAMAGES DUE TO ANY DEFICIENCY, ERROR OR INTERRUPTION IN SERVICE. IN THE EVENT OF A SERVICE DISRUPTION, LICENSEE’S SOLE REMEDY SHALL BE TO REQUEST LICENSOR TO CORRECT THE INTERRUPTION.
The Web Map may occasionally experience outages during which Licensee or other users will not be able to login, view or otherwise access the Content. Licensor does not warrant that the Web Map or its servers are free of viruses or other harmful components. Licensor will not be liable for any damages of any kind arising from the use or unavailability of the Web Map.
b. Limitation on Liability. EXCEPT FOR LICENSEE’S INDEMNITY OBLIGATIONS FOR LICENSEE’S BREACH OF SECTION 12 OF THIS AGREEMENT, OR IN THE EVENT OF EITHER PARTY’S INTENTIONAL MISREPRESENTATION, EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES SET FORTH IN SECTION 4 OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS ON POTENTIAL LIABILITIES SET FORTH IN THIS SECTION 10(B) WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
c. Limitation on Consequential Damages. EXCEPT FOR LICENSEE’S INDEMNITY OBLIGATIONS FOR LICENSEE’S BREACH OF SECTION 12 OF THIS AGREEMENT, OR IN THE EVENT OF EITHER PARTY’S INTENTIONAL MISREPRESENTATION, NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY), FOR COVER OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, MULTIPLIED, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES SET FORTH IN THIS SECTION 10(C) WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
11. Indemnity and Hold Harmless.
a. General. Subject to the limitations on liability and consequential damages set forth in Section 10 of this Agreement, each Party shall indemnify the other Party from and against any and all direct losses, damages or expenses, including reasonable attorneys’ fees that the indemnified Party may sustain or incur as a result of any third party claim, suit or proceeding arising out of or in connection with (i) a breach by the indemnifying Party of any of its obligations under this Agreement, (ii) any negligent or willful act or omission of the indemnifying Party, or any of its employees or agents; and (iii) any violation by the indemnifying Party, or any of its employees or agents of any law, statute, ordinance or regulation.
b. By Licensor for Infringement. Subject to the limitations on liability and consequential damages set forth in Section 10 of this Agreement, if a third party claims that the Web Map, the Content, or the Software infringes that party’s patent, copyright, or other proprietary right, Licensor will defend Licensee against that claim at Licensor’s expense and pay all reasonable costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Licensor provided that Licensee:
i. promptly notifies Licensor in writing of the claim; and
ii. allows Licensor to control, and cooperates with Licensor in, the defense and any related settlement.
If such a claim is made, Licensor shall, at Licensor’s election, (A) obtain the right for Licensee, at Licensor’s expense, to continue using the Web Map, the Content, or the Software; (B) provide a reasonable and non-infringing functionally equivalent replacement; (C) reasonably modify the Web Map or the Content, as applicable, so that they no longer infringe but provide equivalent functionality; or (D) if the alternatives listed in Sections 11(b)(A)-(C) are not reasonably available, terminate this Agreement without any liability to Licensee upon written notice to Licensee, provided that, Licensee shall be responsible to pay to Licensor all amounts due and payable as of the date of termination. The indemnities set forth in this Section 11(b) shall not apply to the extent that any third party infringement claim arises from Licensee’s use of the Web Map, the Content, or the Software other than in accordance with the terms of this Agreement.
c. By Licensee for Licensee Data. Licensee shall indemnify Licensor from and against any and all direct losses, damages or expenses, including reasonable attorneys’ fees that Licensor may sustain or incur as a result of any third party claim, suit or proceeding arising out of or in connection with any claim, judgment, or adjudication against Licensor related to or arising from a claim that Licensor’s use of the Licensee Data, as permitted under this Agreement, infringes the copyright and trade secret rights of a third party.
a. In this Agreement, the term “Confidential Information” shall mean any confidential or proprietary information or material orally or visually disclosed by one Party or any of its Representatives (the “Disclosing Party”), whether intentionally or inadvertently, to the other Party or any of its Representatives (the “Receiving Party”) including, but not limited to, the financial terms of this Agreement, and information regarding the Disclosing Party’s products, business operations, presentations, financial models, processes, finances, customers, services, and technical knowledge. “Confidential Information” shall also include, whether in oral, visual, written, graphic or electronic form, and whether or not marked as “Confidential”, “Proprietary”, or “Restricted” or some other similar marking, any information, the nature of which is such that a reasonable person would consider the information to be confidential or proprietary.
b. The Receiving Party hereby agrees that it will not at any time, whether before or after the termination of this Agreement, use, disclose or make available to any third party any Confidential Information of the Disclosing Party, or any of its affiliates, submitted to the Receiving Party or otherwise obtained by the Receiving Party in connection with this Agreement.
c. The restrictions contained in this Section 12 shall not apply to any Confidential Information that is:
i. generally known, or becomes generally known, to the public through no wrongful or negligent act, error, omission or breach of this Agreement by the Receiving Party or its Representatives;
ii. in the possession of Receiving Party prior to its entering into this Agreement, as evidenced by its written records maintained in the ordinary course of business; or
iii. is approved for release by written authorization of the Disclosing Party.
d. Notwithstanding the foregoing, in the event the Receiving Party is required by applicable law, or compelled by order of a court, governmental or regulatory agency of competent jurisdiction, to disclose any Confidential Information, it will provide prompt written notice of such required disclosure to the Disclosing Party, so that the Disclosing Party may, at its discretion, undertake any challenge to or defense against such disclosure requirement. The Receiving Party will cooperate with the Disclosing Party to the maximum extent practicable, to minimize or eliminate the required disclosure of Confidential Information consistent with applicable law and to obtain proprietary or confidential treatment of such Confidential Information prior to its disclosure to a third party pursuant to this Section 12. Should the Receiving Party be compelled by such legal process to disclose Confidential Information, the Receiving Party may disclose only that part of the Confidential Information, which in the opinion of its legal counsel, it is required to disclose.
e. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose of its own, except in performance of this Agreement. The Receiving Party will restrict access to the Disclosing Party’s Confidential Information to those of its officers, employees, or subcontractors retained to assist The Receiving Party in the performance of this Agreement (collectively, the “Representatives”) who are required to have access to such Confidential Information and who will be directly involved in the performance of this Agreement, and shall advise those of its Representatives who receive such Confidential Information that such information: (a) is proprietary and confidential to the Disclosing Party; and (b) shall not be disclosed to anyone except as authorized in this Agreement. The Receiving Party shall be responsible and liable to the Disclosing Party for any unauthorized disclosure of the Confidential Information or breach of this Agreement by any of its Representatives.
f. In order to protect Confidential Information against disclosures or uses prohibited by this Agreement, the Receiving Party further agrees to take such measures at least as restrictive as those taken to protect its own confidential and proprietary information, but in no event shall the Receiving Party use less than a reasonable degree of care. For example, Receiving Party will notify Disclosing Party in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use or disclosure.
g. Without the Disclosing Party’s prior written consent, the Receiving Party shall not reproduce or make copies of any Confidential Information, except as necessary in the performance of this Agreement, and at any time upon the Disclosing Party’s request, the Receiving Party shall promptly return to the Disclosing Party the originals and all copies of the Confidential Information then in the Receiving Party’s or any of its Representatives’ possession. Furthermore, Receiving Party shall not download, upload, copy, transmit and/or transfer any Confidential Information and/or proprietary information, to any network, server, computer, external storage device and/or any other media that is not owned and/or controlled by Receiving Party, unless authorized to do so in writing by Disclosing Party. At Disclosing Party’s request, the Receiving Party shall confirm in writing to the Disclosing Party that the Receiving Party has not reproduced or retained any samples, originals or copies of any Confidential Information, except as may be required by law. Notwithstanding the foregoing, a deletion of electronic files containing or constituting Confidential Information, or the deletion of information from cloud drives not controlled by the Disclosing Party, shall be considered to be the destruction of such Confidential Information for purposes of this Agreement, provided that the deleted files must not be retrievable other than through extraordinary data salvage methods. Notwithstanding the return of Confidential Information, the Receiving Party will continue to be bound by its obligations of confidentiality pursuant to this Section 12.
h. The Receiving Party understands and agrees that the Disclosing Party will be irrevocably injured by any breach of the confidentiality provisions of this Section 12, that money damages would not be a sufficient remedy for any such breach, and that the Disclosing Party shall be entitled to seek (without the requirement of posting a bond or otherwise securing any undertaking as to damages) injunctive relief as a remedy for any such breach and to enforce specifically the terms and provisions of this Section 12 this being in addition to any other remedy to which the Disclosing Party is entitled at law. In addition, the Receiving Party shall indemnify the Disclosing Party from any loss or harm, including, without limitation, reasonable attorneys’ fees, resulting from any breach or enforcement of the Receiving Party’s obligations hereunder or the unauthorized use or release of the Disclosing Party’s Confidential Information.
i. The covenants of confidentiality set forth in this Section 12 shall apply as of the Effective Date of this Agreement and will continue: (a) with respect to Confidential Information, for an additional five (5) year period; and (b) with respect to Confidential Information that rises to the level of a “trade secret”, as defined under applicable law, for the greater of such five (5) year period or the period of time such information retains its status as a “trade secret” as determined under applicable law, whichever is longer.
a. Notices. Any notice or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been sufficiently given or served if sent by facsimile transmission, delivered by messenger or overnight courier, or mailed, certified first class mail, postage prepaid, return receipt requested, and addressed or sent to the recipient’s address, as set forth below. Such notice shall be effective (i) if delivered by messenger or by overnight courier, upon actual receipt; (ii) if sent by facsimile transmission, upon confirmation of receipt by the transmitting medium; or (iii) if mailed, upon the earlier of three (3) business days after deposit in the mail and the delivery as shown by return receipt therefor. Either Party may change its address by giving notice in writing to the other Party of its new address.
b. Governing Law. This Agreement, and the application and interpretation hereof, shall be governed exclusively by its terms and by the laws of the Commonwealth of Virginia Any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the state or federal courts located in the City of Alexandria, Virginia. Each of the Parties waives the right to a trial by jury in any action relating to such a dispute.
c. Amendments. Except as otherwise provided herein, this Agreement may not be amended except by the written agreement of both Parties.
d. Force Majeure. Except with regard to payment obligations, each Party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of such Party, including, but not limited to, default of subcontractors or suppliers, failures of third party software, default of third party vendors, acts of God or of the public enemy, U.S. or foreign governmental actions, labor shortages or strikes, communications or utility interruption or failure, fire, flood, epidemic, and freight embargoes.
e. Assignment. This this Agreement may not be assigned by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. This Agreement shall be binding upon and inure to the benefit of each Party and its successors and permitted assigns.
f. Nature of Relationship. The Parties’ relationship is that of independent contractors. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties. Neither Party will make any warranties and/or representations, or incur any obligations whatsoever, on behalf of or in the name of the other Party.
g. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.
h. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, among the Parties relating to the subject matter hereof and all past courses of dealing.