These general terms and conditions are part of the contract to which they are attached (the “Agreement”) and apply to your use of any marketing or email data or services provided by Prodata-Reach Inc. or its affiliated companies (“Prodata-Reach”), which data or services are referred to collectively as the “Data.”
(A) - The term “Prodata-Reach Property” means all programs, files, systems, documentation, information, content, graphics, page layouts, site designs, user interfaces utilized or provided by Prodata-Reach, work product produced by Prodata-Reach, and derivative works of any of the foregoing, including, without limitation, the website or websites made available to you by Prodata-Reach, any HTML programming performed as part of providing you with Data and any other special programs, functionalities, interfaces and other work product, ideas, concepts or techniques which Prodata-Reach may develop, use or rely upon in providing the Data to you.
(B) All Prodata-Reach Property shall be and will remain the property of Prodata-Reach.
(C) As between you and Prodata-Reach, Prodata-Reach shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Prodata-Reach Property and the Data.
Upon your execution of the Agreement and the payment of all amounts due
Prodata-Reach, you
are granted a personal, nontransferable and nonexclusive license to use the Data
solely for
your direct marketing, market research and customer prospecting purposes, in strict
accordance with the terms of the Agreement.
If no usage period is selected, the
license’s
term shall be for a period of one year Company shall retain all right, title and
interest in and to the Production/Services
and all intellectual property contained therein.
Upon expiration or termination
of the
Agreement, you shall discontinue use of the Data and, as requested by
Prodata-Reach, either
THE DATA IS PROVIDED ON A STRICTLY “AS IS” BASIS. Prodata-Reach DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE DATA AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, Prodata-Reach DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE 14 DAYS FROM YOUR RECEIPT OF THE DATA TO INSPECT IT AND NOTIFY Prodata-Reach OF ANY PROBLEMS OR MISTAKES IN THE DATA AND IF YOU SO NOTIFY Prodata-Reach WITHIN THAT 14-DAY PERIOD, THE PROBLEM OR MISTAKE WILL BE CORRECTED AT NO ADDITIONAL CHARGE TO YOU.
Except as provided in the last sentence of Section 5, Prodata-Reach will not be liable for any claim, demand, loss, liability, damage, injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or other damage caused in whole or in part or directly or indirectly by any use of the Data or any alleged or actual failure by Prodata-Reach to comply with the terms of the Agreement, whether or not any such damages were foreseeable or whether Prodata-Reach was advised of the possibility of such damages. Prodata-Reach’s maximum liability under the last sentence of Section 5 will not exceed the amount you paid Prodata-Reach under the Agreement within the 12 months preceding the event which gave rise to Prodata-Reach’s liability.
You shall indemnify, defend and hold harmless Prodata-Reach, its stockholders, directors, officers, employees, independent contractors and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Data or any violation of the Agreement or any violation of Laws.
You acknowledge that, given the technical nature of resources Prodata-Reach requires to provide the Data to you, temporary interruptions may occur in the provision of Data and that any such interruptions shall not result in Prodata-Reach having any liability to you or others and shall not suspend or eliminate your payment obligations to Prodata-Reach or provide you with any refund rights for amounts previously paid to Prodata-Reach
You may not assign your rights or obligations under the Agreement to any other person or entity without the prior written consent of Prodata-Reach, whether by operation of law or otherwise, and any attempt to do so shall be void.
In addition to all other legal rights and remedies available to Prodata-Reach for any apparent, threatened or actual breach or violation of the Agreement by you, Prodata-Reach has the right to terminate the Agreement and demand immediate return or destruction of the Data at any time if Prodata-Reach believes you are not complying in full with the Agreement.
The Agreement shall be governed by and construed under the laws of the State of Nebraska, without regard for the principles of conflicts of law of that State or any other state. Any litigation or other dispute relating to or arising under the Agreement shall only be brought in the state or federal courts located in Douglas County, Nebraska and you agree to submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any such proceeding in those courts.
The Agreement contains the entire understanding between you and Prodata-Reach and supersedes any prior understandings or agreements, oral or written, relating to the subject matter of the Agreement. The Agreement may only be amended by a document signed by you and Prodata-Reach. No waiver of any breach of the Agreement shall be deemed a waiver of a future breach, whether of a similar or different nature, and no waiver shall be effective unless in writing signed by the waiving party.
Certain services, including Prodata-Reach.com, may include a file management
library allowing you to store and access certain marketing creative (e.g. your
logos, email
creative, images) and other documents (collectively, “Marketing Content”) for your
internal use. Any such Marketing Content and art will remain your property; however,
you give
Prodata-Reach permission to host, store, and to allow access to your users. You are
solely responsible for ensuring that you have all necessary rights and license to
the
Marketing Content and to use that Marketing Content in connection with the services.
Prodata-Reach is not responsible for actions you take with respect to your
Marketing Content. You
agree to not upload Marketing Content that, or otherwise use the services, to:
(i) violate the intellectual property rights of
any third party;
(ii) engage in or promote illegal activity; or
(iii) distribute viruses, worms, or other malware
or malicious software. We
reserve the right to delete or disable content alleged to violate the foregoing;
however,
Prodata-Reach has no obligation to monitor or review your Marketing Content. You
acknowledge that
any file management library is made available for your convenience and is not
intended to be
used as a data backup service or in connection with disaster recovery. You are
responsible
for maintaining independent copies of all Marketing Content, including backup
copies.
Marketing Content is subject to deletion upon termination.
The Agreement may be executed in its original, by facsimile or in electronically transmitted portable document format and it may be executed in any number of counterparts, each of which shall be deemed an original of the same document.