List Brokerage Terms and Conditions

This List Rental Agreement (this “Agreement”) by and between List Manager and Data Axle, Inc. (“Data Axle”), either directly or through its subsidiaries or affiliates, effective upon the date List Manager accepts the Agreement (“Effective Date”), sets forth the terms and conditions governing the rental of the List identified in the Order/Purchase Order (the “List”). The parties hereby agree as follows:

1. List Rental; Permitted Use.

a. List Manager hereby agrees to rent to Data Axle the List for use by Data Axle’s customer (“Customer”). List Manager hereby grants Data Axle the royalty free, sublicensable right and license to use, reproduce, and distribute the List for the purposes of providing services and information to Customer for Customer’s business purposes, including, without limitation, promoting Customer’s products and services.
b. Data Axle and Customer may use the List for one-time use, unless specifically stated otherwise in the agreed to Order/Purchase Order, during the term of this Agreement in connection with Customer’s own products and services.
c. Data Axle acknowledges that, as between Data Axle and List Manager, the List at all times remains the sole property of a List Manager’s client (the “List Owner”).

2. Term. This Agreement shall be in force for a term of one (1) year from the Effective Date.

3. Representations and Warranties. List Manager represents and warrants that: (a) it has and will at all times maintain the full right and authority to provide the List to Data Axle for use by Data Axle and Customer; (b) it has no knowledge of any third party claim alleging that the List in whole or in part is not owned by List Owner or that the List may not be sold to third parties; (c) the List has been and will be sourced, compiled and maintained in accordance with all Laws (as defined below), whether such Laws are effective as of the Effective Date or become effective after the Effective Date, and with all applicable federal, state, and local laws, rules, and regulations that govern the collection, use, processing, disclosure, and protection of personally identifiable information, including but not limited to Regulation (EU) 2016/679 (General Data Protection Regulation) and the California Consumer Privacy Act of 2018 (collectively, “Data Protection Laws”), and that the provision of the List, or any portion thereof, to any person or entity, as contemplated under this Agreement shall not constitute a violation of any Data Protection Laws or other Laws, rule, regulation, or valid judicial or administrative order; and (d) the List does not and will not contain any virus or other harmful computer code.

4. Compliance with Laws. The parties shall comply with all applicable federal, state and local laws, statutes, rules, regulations and ordinances (“Laws”), including, but not limited to, direct marketing Laws and Laws concerning facsimile and email transmissions and Data Protection Laws. The parties shall maintain a system of internal controls that are reasonably designed to ensure compliance in all material respects by the parties with all applicable Data Protection Laws.

5. Payment. Data Axle is authorized to facilitate the rental of lists on behalf of its customer. Data Axle does not guarantee payment by Customer and shall only be liable hereunder in an amount not to exceed the amount set forth in Section 6(b) below.

6. Indemnification; Limitation of Liability.

a. To the maximum extent permitted under applicable law, List Manager shall indemnify, defend, and hold harmless Data Axle, its affiliates and Customers, and its and their respective officers, directors, employees, representatives, successors, and assigns from and against any and all claims, actions, causes of action, suit, proceedings, damages, liabilities, losses, judgements, costs and expenses of any nature whatsoever (including, but not limited to, attorneys’ fees and expenses) however incurred, arising from, resulting from, relating to or based upon: (a) List Manager’s negligence or more culpable conduct; (b) List Manager’s actual or alleged breach of this Agreement or violation of any Law; and (c) Data Axle’s or any Customers’ use, reproduction or distribution of the List.
b. DATA AXLE SHALL NOT BE LIABLE TO LIST MANAGER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES WHICH ARISE OUT OF THE PURCHASE, SALE AND/OR USE OF THE LIST OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT OR PURSUANT TO SOME OTHER THEORY AND WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. IN NO EVENT SHALL DATA AXLE’S MAXIMUM AGGREGATE LIABILITY TO LIST MANAGER UNDER ANY LEGAL THEORY FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE AND/OR USE OF THE LIST OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT EXCEED THE ACTUAL AMOUNT PAID BY DATA AXLE TO LIST MANAGER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE FIRST CLAIM BY LIST MANAGER UNDER THIS AGREEMENT.

7. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nebraska, without regard to any conflict of laws principles, and each party hereby consents to the exclusive jurisdiction of the state or federal courts located in Douglas County, Nebraska.

8. General. No failure or delay by List Manager or Data Axle in exercising any right, power or privilege herein granted shall operate as a waiver thereof. This Agreement shall be construed so that each of the provisions hereof shall be valid and enforceable to the fullest extent permitted by law, and any invalidity or un-enforceability with respect to any particular provision or provisions hereof shall not affect or render invalid or unenforceable any other such provision. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. To the extent that a provision of this Agreement conflicts with any other prior or contemporaneous written or oral agreements or communications or click-through, shrink wrap, browse-wrap or other online terms, the terms of this Agreement shall supersede and govern.