END USER LICENSE AGREEMENT
BY ACCEPTING AN INSERTION ORDER (“IO”) THAT INCORPORATES THIS END USER LICENSE AGREEMENT (THE “EULA”), LICENSEE AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. THE IO AND EULA TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” THE TERMS OF THE IO SHALL CONTROL OVER ANY CONFLICTING TERMS IN THE EULA.
INFUSEmedia and Licensee hereby agree as follows:
1. SCOPE, GRANT OF LICENSE
1.1 This Agreement governs Licensee’s access to and use of certain Licensed Materials (defined below) made available to Licensee by INFUSEmedia, a company with an office and place of business located at 300 Washington Street, Suite 850, Newton, MA 02458 (“INFUSEmedia”) and Licensee’s access to and use of any INFUSEmedia Technology (defined below).
1.2 The “Licensed Materials” consist of all electronic information, including demographic and firmographic data files and information, as described in any IO executed between the parties, which shall be published or otherwise made available by INFUSEmedia to Licensee under this Agreement. “INFUSEmedia Technology” consists of software, websites, networks, and equipment made available or used by INFUSEmedia pursuant to this Agreement to facilitate Licensee’s access to and/or use of the Licensed Materials. INFUSEmedia technology does not include and specifically excludes Third Party Applications.
1.3 Subject to the terms and conditions herein, INFUSEmedia hereby grants to Licensee a limited, non-exclusive license to access and use the Licensed Materials and the INFUSEmedia Technology for the purpose or purposes listed in the IO, during the Term of this Agreement.
1.4 Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the INFUSEmedia Technology may interoperate. Where agreed between the parties, INFUSEmedia may provide certain integration tools, which consist of INFUSEmedia Technology designed to allow Licensee to use INFUSEmedia Technology and the Licensed Materials in such a way as to interoperate with a Third Party Application. INFUSEmedia is not responsible for and does not endorse any Third Party Applications or websites linked to by INFUSEmedia Technology.
2. DELIVERY/ACCESS OF LICENSED MATERIALS TO LICENSEE
INFUSEmedia will make the Licensed Materials available to the Licensee in digital form via password-protected online access accessible by Licensee with usernames and passwords provided to Licensee by INFUSEmedia, or as otherwise mutually agreed by the parties.
3. PAYMENT AND PAYMENT LIABILITY
3.1 A “Payable Action” is defined as a lead generated through the Licensed Materials Contacts (defined below) provided by INFUSEmedia to Licensee as part of the Licensed Materials. A lead will be considered generated once the Licensed Materials Contact has taken the appropriate action. Payable Actions will be tabulated and recorded by a system mutually agreed upon by INFUSEmedia and Licensee and reported by Licensee to INFUSEmedia on a monthly basis.
3.2 INFUSEmedia will invoice Licensee each month for all Payable Actions recorded during the previous month according to the terms set forth in the IO. Licensee must remit payment for the invoiced amount within thirty (30) days (the “Initial Due Date”).
3.3 Late Fees and Payments
i. A fee of 18% APR will be charged to Licensee for any and all late payments. A late payment is a payment not made by Licensee to INFUSEmedia within thirty (30) days of the Initial Due Date. Licensee agrees to pay for reasonable costs and expenses, including attorney fees, for any efforts made by INFUSEmedia to collect on past due amounts.
ii. Failure to pay the payment due may result in, in INFUSEmedia’s sole discretion and without notice to Licensee, (i) restriction or suspension of Licensee’s online access to the Licensed Materials until all past-due payments are made or (ii) termination of this Agreement. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay all fees. This is not intended to be INFUSEmedia’s exclusive remedy, and INFUSEmedia retains all rights and remedies it may have at law or in equity.
4. AUTHORIZED USE OF LICENSED MATERIALS AND INFUSEmedia TECHNOLOGY
4.1 Authorized User. An “Authorized User” is a natural person who is an employee of Licensee and who has been identified and designated in writing by Licensee and accepted by INFUSEmedia, or with the express permission of INFUSEmedia, a natural person who is not an employee of Licensee but who is in a confidential relationship with Licensee. In the event that any Authorized User’s employment or other confidential relationship upon which his or her Authorized User status is conditioned under this section terminates, such person’s authorization to access the Licensed Materials and/or any INFUSEmedia Technology shall be automatically rescinded without any further action by INFUSEmedia. Licensee may reassign the Authorized User designation at any time subject to the foregoing qualification requirements. Authorized User licenses that remain inactive for more than 90 days may be deemed expired.
In cases where INFUSEmedia has made the Licensed Materials available to Licensee in digital form via password-protected online access accessible by Licensee with usernames and passwords provided to Licensee by INFUSEmedia, each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared, and may not under any circumstances be used by anyone who is not an Authorized User to gain access to the Licensed Materials. In the event that Authorized User login credentials are shared with non-Authorized Users, Licensee shall pay additional Authorized User fees as provided in the IO, due upon Licensee’s receipt of invoice. In the event of the termination of a previously Authorized User, as described above, Licensee shall promptly notify INFUSEmedia so that such person’s login credentials can be disabled.
In cases where INFUSEmedia has made the Licensed Materials available to Licensee by some other mutually agreed upon delivery method, such as non-password protected file sharing, the Licensed Materials may only be shared with and made accessible to Authorized Users. Authorized Users may not under any circumstances forward or share the Licensed Materials with anyone who is not an Authorized User or cause the Licensed Materials to be accessed or used by anyone who is not an Authorized User. In the event of the termination of a previously Authorized User, as described above, Licensee shall ensure that access to the Licensed Materials terminates.
Whether the Licensed Materials are made available to Licensee via password-protected online access or by some other delivery method mutually agreed upon by the parties, Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of the Licensed Materials set forth herein.
4.2 Authorized Uses. Licensee shall not access or use Licensed Materials for any purpose except that listed in the IO. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee and its clients. Authorized uses shall be limited to the following: (i) to view the Licensed Materials; (ii) to communicate with a person identified in the Licensed Materials (each such person, a “Licensed Materials Contact”), and (iii) to download and print selected information from the Licensed Materials. Licensee shall not permit anyone who is not an Authorized User to use any username or password or otherwise access or use the Licensed Materials. Licensee shall not redistribute, sublicense, transfer, sell, offer for sale, or disclose any of the Licensed Materials to any third party. Licensee shall not incorporate any of the Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement, or at the request of INFUSEmedia at any time with reasonable notice, Licensee shall delete, destroy, or remove from its own systems the Licensed Materials and cease using the Licensed Materials in any way. Licensee shall not remove, obscure, or modify any notice of copyright or other notice included in the Licensed Materials. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact. Licensee shall ensure that no Authorized User takes any action inconsistent with Licensee’s obligations under this Agreement.
4.3 Use of INFUSEmedia Technology. Licensee is permitted to use the INFUSEmedia Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the INFUSEmedia Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the INFUSEmedia Technology or related documentation; (iii) distribute or display any of the INFUSEmedia Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the INFUSEmedia Technology, or use the INFUSEmedia Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the INFUSEmedia Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the INFUSEmedia Technology or related documentation; or (vii) disclose the results of any INFUSEmedia Technology or program benchmark tests to any third parties without INFUSEmedia’s prior written consent. Licensee may use INFUSEmedia Technology only in accordance with this Agreement and not for the benefit of any third party unless expressly permitted herein. By using INFUSEmedia Technology to integrate with any email marketing software, Licensee consents to INFUSEmedia’s use, on an anonymous basis, of Licensee’s information regarding invalid email addresses contained therein (i.e. bounces), and to the extent applicable grants INFUSEmedia a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such information.
4.4 Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any CRM system unless such system is available to Authorized Users only. Any Licensed Materials that are downloaded and/or integrated into any CRM system must be maintained with identifying information indicating that such materials originated with INFUSEmedia, for example, by maintaining a leadsource of “INFUSEmedia.
5. INFUSEmedia’s PERFORMANCE OBLIGATIONS
5.1 Access to Licensed Materials. INFUSEmedia will provide Licensee with access to INFUSEmedia’s Licensed Materials for the products and/or services specified in the IO.
5.2 Support. INFUSEmedia will offer activation or installation support, including assisting with integration with Licensee’s internal CRM systems. INFUSEmedia will offer reasonable levels of continuing support to assist Licensee and Authorized Users in accessing the Licensed Materials. INFUSEmedia will make its personnel available by email, online chat, phone, or fax for feedback, problem-solving, or general questions between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time, Monday to Friday.
6. LICENSEE PERFORMANCE OBLIGATIONS
6.1 Licensee represents, warrants, and covenants that it will not, in connection with its use and access of the Licensed Materials: (i) commit or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (ii) violate, plagiarize, or infringe the rights of third parties, including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other proprietary right; (iii) use the Licensed Materials, or any part thereof, to harass or harm any person in any way; or (iv) disparage, defame, libel, or make untrue or malicious statements about INFUSEmedia.
6.2 Identification of Authorized Users. Licensee shall identify all Authorized Users to INFUSEmedia by providing names, work email addresses, and telephone numbers.
6.3 Provision of Notice of License Terms to Authorized Users. Licensee shall provide Authorized Users with notice of the terms and conditions of the EULA, including, in particular, its limitations on access to or use of the Licensed Materials.
6.4 Protection from Unauthorized Use. Licensee shall make commercially reasonable best efforts to prevent unauthorized access to or use of the Licensed Materials. In the event of any unauthorized use of or access to the Licensed Materials, INFUSEmedia may suspend or terminate access to the Licensed Materials, provided that INFUSEmedia shall first provide reasonable notice to Licensee and cooperate with the Licensee to avoid recurrence of any unauthorized use or access to the Licensed Materials.
6.5 Ownership of the Licensed Materials and Intellectual Property. Licensee acknowledges and agrees that, as between Licensee and INFUSEmedia, the Licensed Materials, the INFUSEmedia Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or INFUSEmedia Technology) are the proprietary intellectual property of INFUSEmedia, whether or not such Licensed Materials are trademarked, copyrighted, or patented. Licensee further agrees that the original and any copies of the Licensed Materials are and shall at all times be the sole and exclusive property of INFUSEmedia and Licensee agrees that Licensee will take no action in contravention of this fact. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or INFUSEmedia Technology or any part thereof beyond the license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall become effective on the date signed by INFUSEmedia and Licensee and shall remain in effect for one (1) year or until it is terminated in accordance with the IO or is terminated by INFUSEmedia with reasonable notice.
7.2 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. Upon expiration or termination of this Agreement, Licensee acknowledges and agrees that Licensee’s access to the Licensed Materials will be automatically terminated, all passwords and individual accounts will be removed, and all information that has been uploaded into INFUSEmedia’s systems by Licensee may be destroyed. Download capability will be disabled 30 days prior to the end of the Term. Upon expiration or termination of this Agreement, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
Licensee acknowledges and agrees that during and after the term of this Agreement, INFUSEmedia shall have the right to use Licensee’s name, logo, URL, Web site screen captures, and description as well as descriptions and examples of the work and services completed and provided to Licensee by INFUSEmedia in INFUSEmedia’s marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, case studies, and in advertisements, without further consent or approval of Licensee.
9.1 “Confidential Information” of a party includes, without limitation, such party’s: inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor, and customer lists, lists of approved components, and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of each party, respectively.
9.2 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement. Without the prior written consent of the other party, neither party shall: disclose or make available such Confidential Information to any person, firm, association, or corporation, or use, directly or indirectly, except for the performance of this Agreement, unless the Confidential Information (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) subsequently becomes generally available to the public by publication or otherwise through no fault of such party.
9.3 The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section.
9.4 All Confidential Information shall be returned to the disclosing party or destroyed upon the earlier of: (a) the termination of this Agreement; or (b) receipt by the receiving party of a written request from the disclosing party.
Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to INFUSEmedia, and (2) Licensee may not assign this agreement to any competitor of INFUSEmedia without INFUSEmedia’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
11. AGREEMENT TO CONDUCT BUSINESS ELECTRONICALLY
INFUSEmedia and Licenses agree to conduct business electronically with the other. Licensee acknowledges and agrees that by signing an IO with INFUSEmedia, Licensee is confirming and acknowledging that Licensee has accepted this Agreement and all the policies, terms and conditions as they may be identified herein. Licensee hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
12. GOVERNING LAW
This Agreement shall be treated as though it were executed and performed in the Commonwealth of Massachusetts, and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (without regard to conflict of law principles). Licensee agrees that any legal action or proceeding between INFUSEmedia and Licensee shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Massachusetts. The parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. Any cause of action or claim either Party may have with respect to this Agreement must be commenced within nine (9) months after the claim or cause of action arises or such claim or cause of action shall be barred.
13. ATTORNEY FEES
Attorney Fees. In the event of any dispute arising under this agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
Licensee agrees to indemnify, defend, and hold harmless INFUSEmedia and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Licensee’s access or use of the Licensed Materials in violation of any law, (2) Licensee’s violation of any provision of this Agreement, (3) Licensee’s sending of any information, messages, or materials to any Licensed Materials Contact (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (4) the use of any Licensed Materials or INFUSEmedia Technology by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
15. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY DISCOVERORG OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO DISCOVERORG, AND REFUND OF A PRORATED PORTION OF THE LICENSE FEES THAT LICENSEE HAS PAID. INFUSEMEDIA’S MAXIMUM LIABILITY TO LICENSEE SHALL BE THE AMOUNTS ACTUALLY PAID TO INFUSEMEDIA BY LICENSEE UNDER THIS AGREEMENT IN THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO LICENSEE’S CAUSE OF ACTION.
16. WARRANTY DISCLAIMER
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS EULA, THE LICENSED MATERIALS AND INFUSEMEDIA TECHNOLOGY ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
17. ENTIRE AGREEMENT
This Agreement and the applicable IO constitute the complete and exclusive statement of the Agreement between INFUSEmedia and Licensee regarding the products and services defined herein. It may only be modified by a writing signed by the party to be charged. This Agreement supersedes, and neither party will be bound by, any “shrink wrap license” or any “disclaimers” or “click to approve” terms or conditions (“Online Terms & Conditions” or “Terms and Policies”) or any Website which they use in connection with this Agreement, notwithstanding the fact that they may have to affirmatively accept such terms as a condition in order to access online services. Such Online Terms & Conditions are procedural only to establish INFUSEmedia and Licensee in each other’s system such that the terms of each party’s participation will be governed by this Agreement and payout information will be as specified in the applicable IO. Should there be a discrepancy between the terms of this Agreement and an IO; the terms of the IO will prevail.