Master Product Suite Agreement

This Master Product Suite Agreement (“Agreement”) between Client and Data Axle Inc., either directly or through its Subsidiaries or Affiliates, (“Data Axle”) is entered into and effective upon the date Client accepts a Schedule referencing this Agreement (the “Effective Date”). “Client” is the legal entity or individual who accepts the Schedule. Data Axle and Client may be referred to each individually as a “Party” and collectively as the “Parties.” A “Schedule” is any document, which is accepted by an authorized representative of each Party, that sets forth the Product Suite provided to Client, terms applicable to the specific Product Suite, and fees.

In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DATA AXLE PRODUCT SUITE. Data Axle will provide Client with the data, applications, services, and any other activity performed by Data Axle pursuant to Data Axle’s Schedules and/or Order Forms (collectively, the “Product Suite”). At any time during the term of this Agreement, Data Axle and Client may enter into one or more of the following Schedules or Order Forms incorporating the specific Product Suite provided to Client and governed by this Agreement. Subsequently, the Parties may enter into Statements of Work under a specific Schedule for transactions related to that Schedule.

A. Licensed Data Schedule
B. Agency Services Schedule
C. Data Processing Schedule
D. Lead Generation Campaign Services Schedule
E. Order Form(s)
F. MultiChannel Services
G. List Brokerage/List Management

2. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE. This Agreement constitutes the entire agreement between the Parties with respect to the Client’s use of Product Suite and merges all prior and contemporaneous communications. Each Schedule, Order Form, and Statement of Work will be subject to and incorporate the terms of this Agreement. The Parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation is void. In the event of a conflict among the terms and conditions of the following documents, the descending order of precedence will be: Statement of Work, Schedule, Order Form, Agreement. Titles and headings of the sections of this Agreement are for description and convenience only and will not affect the construction of any provision of this Agreement.

3. AFFILIATES AND SUBSIDIARIES. Client’s Affiliates may also purchase or license Product Suite under the same terms and conditions of this Agreement. Each Affiliate shall enter into a separate Schedule or Order Form and clearly indicate that the Schedule or Order Form is governed by this Agreement. “Affiliates” means any entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client. “Ownership” means at least fifty-one percent (51%) of the equity of the applicable entity. “Control” means the right to exercise the voting rights associated with at least fifty-one percent (51%) of the voting equity of the applicable entity. Client shall remain fully liable for all Schedules, Order Forms, and Statements of Work executed pursuant to this Agreement. Affiliate will remain fully liable for each Schedule or Order Form it enters into. If an Affiliate enters into its own Schedule or Order Form, then Party, Parties, and Client will also include the Affiliate as to the Product Suite provided to such Affiliate. “Subsidiaries” means entities affiliate with Data Axle as may be identified by Data Axle from time to time.

4. TERM. The term of this Agreement will commence on the Effective Date and continue in effect until the termination or expiration of the last Schedule, unless terminated earlier in accordance with Section 5. If a term for a Schedule is not specified, then the term for such Schedule will be for one (1) year from the date of the last signature of the Schedule and will automatically renew in one-year increments, unless Data Axle gives Client written notice of nonrenewal at least thirty (30) days before the end of the relevant term. In addition to the rights granted in Section 5 below, upon thirty (30) days’ notice to Client, Data Axle may terminate this Agreement and or any Schedule at any time for any reason.

5. TERMINATION. This Agreement and any Schedule may be terminated immediately where:

5.1 Either Party commits a material breach of this Agreement, Schedule, or Statement of Work and such breach remains uncured after thirty (30) days of the non-breaching Party’s notification of such breach and the non-breaching Party subsequently elects to terminate;

5.2 Either Party becomes subject to any involuntary receivership, insolvency, bankruptcy, moratorium or similar proceeding;

5.3 At Data Axle’s sole discretion, Client assigns, or attempts to assign, this Agreement in breach of the Assignment section of this Agreement;

5.4 At Data Axle’s sole discretion, Client or any of its Affiliates have failed to pay Fees (defined below) or report usage (as determined in a Schedule);

5.5 At Data Axle’s sole discretion, Client or any of its Affiliates has breached Section 11 of this Agreement;

5.6 At Data Axle’s sole discretion, 50% or more of the assets, equity securities, or voting interests of Client are sold, assigned, or otherwise transferred in a single transaction or a series of related transactions to any of the Restricted Entities (defined below);

5.7 At Data Axle’s sole discretion, Client or any of its Affiliates has materially breached any term or condition of this Agreement, Schedule, or Statement of Work on three (3) or more occasions, even if previous breaches were cured in accordance with the provisions of this Section.

6. EFFECT OF TERMINATION.

6.1 Termination of the Agreement will terminate all Schedules and Statements of Work hereunder. Termination of a Schedule or Statement of Work will not automatically terminate this Agreement.

6.2 Upon termination or expiration of this Agreement or any Schedule, all fees and royalties, including any and all minimum fees, (“Fees”) for the Product Suite will be due and payable immediately. Termination of this Agreement for any reason will not terminate, diminish, or otherwise affect Client’s obligation to pay all applicable Fees accrued under a Schedule.

6.3 Upon termination or expiration of this Agreement or any Schedule, Client shall immediately cease any and all use of the Product Suite. Within thirty (30) days after the expiration or termination of this Agreement or applicable Schedule, Client shall certify in writing that Data Axle’s Confidential Information and Product Suite have been completely, securely, and permanently destroyed, unless legally prohibited.

7. FEES AND PAYMENT.

7.1 Fees set forth in each applicable Schedule must be paid in full by Client within thirty (30) days following the date of Data Axle’s invoice. Fees not paid within thirty (30) days will accrue interest at the highest rate allowed by applicable law. In the event Client fails to make timely payments, Data Axle, in its sole discretion, may suspend Client’s access to the Product Suite and/or accelerate the payment terms to require the amount of all remaining Fees due immediately.

7.2 Where Client utilizes a third-party to manage its vendors including but not limited to payment processing providers, Client shall pay the cost for Data Axle’s subscription fee to such third-party.

8. TAXES. The Fees set forth in each Schedule are exclusive of any taxes. Client shall pay all taxes of any type, nature, or description associated with its purchases under a Schedule (including, but not limited to, sale, use, gross receipts, excise, import, export, income and employment taxes); provided, however, Client shall not pay for any income taxes imposed upon Data Axle by any taxing jurisdiction, arising by virtue of the performance of this Agreement.

9. CONFIDENTIALITY.

9.1 Definition of Confidential Information. “Confidential Information” means all nonpublic, confidential, or proprietary information disclosed by a Party or its Affiliates (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing or via electronic means, that is marked as “confidential” or that should be reasonably understood to be confidential. Confidential Information includes, without limitation, the Product Suite, financial statements, business and marketing plans, customer/client transactions customer/client lists, pending or threatened litigation, prospective contractual relations, collection, tabulation and analysis of data, proprietary information, computer programming methods, source code, object code, designs, specifications, plans, drawings, programs, databases, intellectual property, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and work in progress. The terms of this Agreement will also be deemed Confidential Information. Confidential Information does not include information that: (i) is publicly available as of the Effective Date or becomes publicly available thereafter through no fault of the Receiving Party provided, however, that the Product Suite will remain Confidential Information notwithstanding any portion of the Product Suite being sourced from the public domain; (ii) the Receiving Party rightfully possessed the information before it was received from the Disclosing Party; or (iii) is subsequently furnished to the Receiving Party by a third-party without restrictions on disclosure. Notwithstanding these provisions, Product Suite is always Data Axle Confidential Information.

9.2 Use of Confidential Information. Each Party retains all ownership rights in and to its Confidential Information. The Receiving Party must use the Disclosing Party’s Confidential Information only to perform its obligations under this Agreement, and for no other purpose. The Receiving Party must keep confidential the Disclosing Party’s Confidential Information using the same degree of care it uses to keep confidential its own Confidential Information, but in no event less than reasonable care. The Receiving Party further agrees not to disclose or permit any other person or entity access to the Disclosing Party’s Confidential Information, except such disclosure or access of the Disclosing Party’s Confidential Information will be permitted to a Representative of the Recipient that requires access, with any such access limited only to the extent necessary in order to perform his or her employment or services as they relate to the Receiving Party’s performance of its obligations under this Agreement. The Receiving Party must ensure that such Representatives sign confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement. The Receiving Party must immediately notify the Disclosing Party in writing of all circumstances which the Receiving Party becomes aware of surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement. Subject to the limitations set forth in this Agreement, the Receiving Party is fully responsible and liable for any breach of this Section by any of its Representatives. Permitted uses pursuant to this Section are subject to all additional restrictions in the Agreement, Schedules, and Statements of Work.

9.3 Required Disclosures; Notification. If the Receiving Party is compelled by law, governmental regulation, court order, or other legal process to disclose any Confidential Information of the Disclosing Party, it may do so if: (i) it provides the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted); and (ii) it provides the Disclosing Party with reasonable assistance, at the Disclosing Party’s reasonable expense, if the Disclosing Party determines in its sole discretion to contest the disclosure.

9.4 Return of Confidential Information. Upon the expiration or termination of this Agreement or upon request of the Disclosing Party during the term of this Agreement, the Receiving Party shall return or irretrievably destroy all Confidential Information of the Disclosing Party then in its possession or control. In the case of destruction, the Receiving Party must certify such destruction to the Disclosing Party within thirty (30) days following the expiration or termination of this Agreement or the Disclosing Party’s request.

10. PROPRIETARY RIGHTS. As between the Parties, Data Axle is and will remain the sole and exclusive owner of all right, title, and interest, including all intellectual property rights, in and to the Product Suite, all information and data elements from one or more of Data Axle’s proprietary databases, moral rights, rights of publicity, rights of privacy under applicable laws or regulations, any modifications, updates, improvements, upgrades, derivative works, Data Axle’s Confidential Information and Feedback related thereto (collectively, “Proprietary Rights”). If Client provides suggestions, comments, ideas or recommendations, requests for enhancements, additional features or functionality, or other feedback to Data Axle (collectively “Feedback”), Client hereby assigns all right, title, and interest, including intellectual property rights, in and to the Feedback to Data Axle. Client’s Confidential Information used in the Product Suite shall remain Client’s property, and Data Axle shall have no ownership rights in Client’s Confidential Information.

11. LICENSE GRANT. Except as expressly set forth in a Schedule or AR 101, Data Axle grants Client a limited, non-exclusive, non-transferable, non-sublicensable license to use the Product Suite for Client’s internal and marketing purposes during the term of the applicable Schedule, not to exceed one (1) year. In the event that no license period to the Product Suite is set forth in a Schedule or AR 101, such license period will be deemed to be one (1) year commencing upon the effective date of the applicable Schedule or AR 101. Client agrees to only use the Product Suite in accordance with this Agreement and any applicable Schedule. All rights not expressly granted hereunder are reserved to Data Axle. Any use of the Product Suite not expressly authorized in this Agreement or any Schedule is strictly prohibited.

12. CONDITIONS OF USE.

12.1 Except as expressly set forth in a Schedule, Client shall: (a) strictly comply with this Agreement, all applicable laws, and industry standards; (b) get and maintain all necessary permissions and valid consents required to lawfully transfer data to Data Axle and to enable such data to be lawfully collected, processed, and shared by Data Axle for the purposes of providing the Product Suite or as otherwise directed by Client; (c) be responsible for the accuracy, quality, and legality of any data and information provided to Data Axle; (d) house the Product Suite on the internet behind firewalls and prevent unauthorized usage or copying of the Product Suite; (e) protect the integrity of the Product Suite, control access to the Product Suite, and reasonably ensure that the amount of usage of the Product Suite is accurately recorded and at a minimum, retain audit logs and other industry standard measures; and (f) comply any applicable wireless suppression lists, the Federal Trade Commission’s Do-Not-Call lists, and other opt-out lists before performing any direct marketing.

12.2 Except as expressly set forth in a Schedule, Client shall not: (i) resell or redistribute the Product Suite on a stand-alone basis or otherwise use the Product Suite in any service or product not specifically authorized in this Agreement or Schedule; (ii) disassemble, decompile, reverse engineer, modify, or otherwise alter the Product Suite or any part thereof; (iii) access any of the Product Suite not intended for Client’s own use; (iv) log on to a server or an account that you are not authorized to access; (v) probe, scan, or test the vulnerability of a system or network; (vi) attempt to breach security or authentication measures without proper authorization; (vii) interfere with services to any user, host, or network, including, but not limited to, submitting a virus to any Data Axle website, overloading, flooding, spamming, mailbombing, or crashing; (viii) use or attempt to sue any engine, software, tool, agent, or other device or mechanism (including without limitation, browsers, spiders, robots, avatars, or intelligent agents) to navigate or search an Data Axle website other than the search engine and search agents available from Data Axle on one of Data Axle’s websites and other than generally available third-party web browsers (e.g. Netscape Navigator, Microsoft Explorer); (ix) use the Product Suite to store or transmit data that infringe a third party’s privacy right or intellectual property right; (x) use the Product Suite in connection with any mobile application (for example, for iOS and Android); (xi) name or refer to Data Axle or Client’s use of the Product Suite in any of Client’s advertisements or promotional or marketing materials; (xii) use the Product Suite to create, send, or display pornography, sexually explicit content, or campaigns promoting or supporting terrorism or violent extremism; (xiii) use data and information derived from the Product Suite to help determine an individual’s eligibility for an extension of credit, insurance, or health care; (xiv) use data and information derived from the Product Suite to create or provide a Consumer Report as defined in 15 U.S. Code § 1681a; (xv) use data and information derived from the Product Suite to evaluate an individual for employment or promotions, reassignment, or retention as an employee; (xvi) use purchased, rented, or third-party lists of email addresses in connection with the Product Suite; (xvii) use or allow third parties to use the Licensed Data for the purpose of compiling, enhancing, verifying, supplementing, adding to or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to or performed for a third party to include digital display, advertising, or onboarding Licensed Data to any data management platform or other platform or exchange; (xvii) use data and information derived from the Product Suite to help determine an individual’s eligibility for a license or other benefit granted by a governmental authority; (xviii) co-brand or otherwise provide the Product Suite on behalf of any third party; or (xix) use data derived from the Product Suite for the purpose of soliciting survivors of deceased persons. All licenses granted to Client pursuant to this Agreement or any applicable Schedule are expressly conditioned upon Client’s (and all applicable third parties) compliance with this Section.

12.3 Client acknowledges that the Product Suite may contain email addresses. Client further acknowledges and agrees that, due to Client’s products or services being advertised in the email, that Client is the “Sender” under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and is responsible for ensuring that previous opt-outs are honored in any further email marketing campaign by or on behalf of Client. Client waives any claim against Data Axle arising out of or related to Data Axle’s transmission of an electronic mail message on behalf of Client to any individual(s) that previously opted-out of receiving such emails from Client. Client agrees that it shall not: (i) send or deliver, directly or indirectly, more than: (a) one (1) commercial electronic mail message (as defined in the CAN-SPAM Act), in the aggregate, to any single email address in any seven (7) calendar day period; and (b) three (3) commercial electronic mail messages, in the aggregate, to any single email address in any calendar month; (ii) use, or permit any email address to be used, in the transmission of any electronic mail message in which the “Sender” (as defined in the CAN-SPAM Act) is any person or entity other than the Client or, if permitted by the applicable Schedule, Client’s permitted Affiliates; or (iii) use email addresses in a manner that otherwise violates any applicable laws. If email addresses are appended for Client, Client represents and warrants that all individual records provided by Client represent individuals with whom Client has an existing business relationship prior to delivery of such records to Data Axle. Client shall hold Data Axle harmless from any loss, liability, claim, or cause of action arising out of or related to: (a) Client’s inappropriate use of email addresses; and (b) Client’s failure to provide an up-to-date opt-out database prior to Data Axle’s transmittal of commercial electronic mail messages on Client’s behalf. It is Client’s sole responsibility to determine the applicability of any such laws, rules, and regulations regarding email deployment.

12.4 Client acknowledges that the Product Suite may include wireless telephone numbers. Client agrees and acknowledges that: (i) Data Axle has not acquired consent in any form from the owners of the wireless telephone numbers to be contacted by Client in any manner; (ii) it is Client’s sole responsibility to ensure that any of the wireless telephone numbers included in data derived from the Product Suite is compliant with all applicable laws, rules, and regulations; (iii) Client shall only use the data derived from the Product Suite in strict compliance with all federal, state, and local laws, rules, regulations, and ordinances, including but not limited to those concerning telephone solicitation, privacy, and direct marketing; (iv) it is Client’s sole responsibility to determine the applicability of all laws, rules, regulations, and ordinances to the data derived from the Product Suite; and (v) Client shall hold Data Axle harmless from any loss, liability, claim, or cause of action arising out of or related to Client’s inappropriate use of wireless telephone numbers.

12.5 If Client utilizes, and Data Axle consents to the use of, the services of a third-party processor or data storage provider (“Third Party”) to process or store any Product Suite, Client shall ensure that (i) such Third Party adheres to the prevailing industry standards with respect to data security; (ii) usage of the Product Suite by a Third Party is limited to storing the Product Suite on behalf of Client; (iii) the Product Suite are not stored internationally; (iv) such Third Party signs Data Axle’s standard Third Party agreement; and (v) Client is fully liable for any Third Party’s access to the Product Suite.

12.4 Client will not use on behalf of or otherwise make any portions of the Product Suite available to the Restricted Entities (defined below) without Data Axle’s prior written approval.

13. MAILER-SPECIFIC TERMS. This Section 13 only applies if Client is a mailer or is acting as an agent for a mailer. Client acknowledges and agrees that all rental names furnished by Data Axle are provided for the sole and exclusive one-time use by Client in connection with the mail piece materials approved by Data Axle and are not for use by any third-party. Client agrees to indemnify, defend, and hold harmless Data Axle and the owner(s) of any lists and/or rentals names furnished to Data Axle from any claim or cause of action arising out of or relating to Client’s use of the lists and/or rental names in violation of this Agreement. Client represents and warrants that its use of any rental names and/or lists will in all cases comply with all laws and regulations and that all mail or other marketing programs using any rental names and/or lists will conform to the Direct Marketing Association’s Ethical Guidelines for direct marketing practices. The rental names and lists are provided as-is. Client agrees that neither Data Axle nor any owner(s) of any lists and/or rentals names furnished to Data Axle will be liable for any loss or injury arising out procuring, compiling, collecting, interpreting, reporting, communicating, or delivering the rental names and/or lists. Client will not use any trade names, trademarks, service marks, or copyrighted materials of Data Axle or any owner(s) of any lists and/or rentals names furnished to Data Axle in listings or advertising in any manner without the prior written approval of Data Axle. Client agrees that the owner(s) of any lists and/or rentals names furnished to Data Axle may, in its own name, enforce this Agreement against Client and the owner(s) of any lists and/or rentals names furnished to Data Axle are third-party beneficiaries of this Agreement for such purposes; provided, however, Client agrees that it will look only to Data Axle, and not the owner(s) of any lists and/or rentals names furnished to Data Axle, for performance of obligations under this Agreement.

14. USER ACCOUNT TERMS. If Client and Client’s users are given user accounts to access the Product Suite, Client and Client’s users must: (i) be at least eighteen (18) years of age; (ii) create an account and a password on one of Data Axle’s websites; (iii) agree to the terms and conditions of this Agreement; and (iv) provide true, complete, accurate, and current contact and billing information. If Client is an individual and assigned an account by his or her employer, educational institution, or other organization, additional terms may apply and govern the use of the Product Suite. Client and each of Client’s users may not share accounts or passwords with any other person or entity. Should Client or Client’s users believe their account has been compromised, please contact Data Axle as soon as possible. Data Axle may terminate Client’s user accounts at any time and for any reason by providing Client prior written notice. Data Axle may suspend Client’s user accounts at any time, with or without cause.

15. FILE MANAGEMENT LIBRARY. Certain Product Suite, including Salesgenie, may include a file management library allowing Client to store and access certain marketing creative (e.g. Client’s logos, email creative, images) and other documents (collectively, “Marketing Content”) for Client’s internal use. Any such Marketing Content and art will remain Client’s property; however, Client gives Data Axle permission to host, store, and to allow access to Client’s users. Client is solely responsible for ensuring that Client has all necessary rights and licenses to the Marketing Content and to use that Marketing Content in connection with the Product Suite. Data Axle is not responsible for actions Client takes with respect to Client’s Marketing Content. Client agrees to not upload Marketing Content that, or otherwise use the Product Suite, 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. Data Axle reserves the right to delete or disable content alleged to violate the foregoing; however, Data Axle has no obligation to monitor or review Client’s Marketing Content. Client acknowledges that any file management library is made available for Client’s convenience and is not intended to be used as a data backup service or in connection with disaster recovery. Client is responsible for maintaining independent copies of all Marketing Content, including backup copies. Marketing Content is subject to deletion upon termination.

16. PRODUCT SUITE SEEDING. Data Axle has a process to randomly monitor Client’s use of the Product Suite, through seeding or other means, to ensure Client’s use is in accordance with this Agreement and the Schedules.

17. PRODUCT SUITE AUDIT. Data Axle may, during the term of this Agreement and for a period of two (2) years following termination or expiration of this Agreement, audit any and all of Client’s books, records, and systems that relate to, load, store, process, or read the Product Suite. Audits will be: (i) performed by Data Axle or its agent; (ii) conducted only during normal business hours; (iii) preceded by at least thirty (30) days’ written notice; and (iv) limited to once in any twelve (12) month period. Client agrees to fully cooperate and provide Data Axle with any access to the books, records, and systems as well as any knowledgeable employees of Client as necessary to audit use of the Product Suite. Data Axle will be solely responsible for the costs and expenses of such audit; provided, however, Client will pay the costs and expenses of such audit and any applicable charges if the audit reveals that Client has not complied with this Agreement.

18. DATA SECURITY AND PRIVACY.

18.1 Each Party shall maintain and ensure all third parties maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the other Party’s Confidential Information. Those safeguards include measures to protect Confidential Information from loss, misuse, unauthorized disclosure, unauthorized access, alteration, and destruction. Client shall maintain and enforce those safeguards to prevent unauthorized or fraudulent use or access of the Product Suite.

18.2 Data Axle and Client may enter into a data processing addendum (“DPA”), which will be incorporated into this Agreement by reference and apply to Personal Data as defined in the DPA. If any Personal Data is transferred from the European Union, the United Kingdom, or Switzerland by Client to Data Axle, the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks and/or the Standard Contractual Clauses will apply. For the purposes of this Agreement, Client and its Affiliates are the data exporters.

18.3 Each party commits to report any Data Security Breach to the other party within twenty-four (24) hours of discovery of the Data Security Breach. “Data Security Breach” means any unauthorized access, use, disclosure, modification, or destruction of the other Party’s Confidential Information. In the event of a Data Security Breach, each Party will use commercially reasonable efforts to prevent the recurrence of a similar Data Security Breach.

18.4 Data Axle will require its data onboarding partners to have a posted privacy statement that reflects its current data use and privacy practices and complies with all applicable laws and regulations. Data Axle will require its data onboarding partners to provide disclosures in its privacy policy of the nature and operation of the data cookie network and give clear instructions enabling users to opt-out of data cookies on the user’s browser and prevent the placement of future data cookies. Data Axle will require its data onboarding partners to permit web users to opt-out of receiving cookies.

19. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS. Each Party represents and warrants that: (i) it has the right and power to enter into this Agreement; (ii) an authorized representative has read and accepted this Agreement; (iii) it will comply with all applicable laws and regulations pertaining to this Agreement. Client, including Client’s users, represents and warrants that Client either owns or has the authority, license, or permission to use all material, content, data, and information provided to Data Axle and/or used within the Product Suite Data Axle warrants that: (a) it will perform the Product Suite in a professional and workmanlike manner; (b) the Product Suite will materially perform in accordance with this Agreement; (c) the Product Suite has not undergone any specific data processing services, including but not limited to, Do-Not-Call or wireless number suppression; and (d) the Product Suite may not meet applicable legal requirements related to the use of marketing information, including but not limited to, laws applicable to commercial email or other electronic messages, telemarketing laws, privacy, and wireless suppression or wireless domain lists. All orders will be free of defects in workmanship and if the order does not match the generally accepted trade standards, Data Axle will, at its discretion, either reperform the services or issue Client a refund. Claims for defects, damages, or shortages must be made by Client in writing no later than ten (10) days after delivery. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, THE SERVICES, DATA, AND PRODUCT SUITE ARE PROVIDED ON AN “AS IS” BASIS AND DATA AXLE HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES TO CLIENT OR TO ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF THE SERVICES, DATA, OR PRODUCT SUITE. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, NEITHER DATA AXLE NOR ANY OF ITS THIRD-PARTY SUPPLIERS OR SERVICE PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPREHENSIVENESS OR COMPLETENESS OF THE SERVICES, DATA, OR PRODUCT SUITE NOR THAT THEY WILL BE UNINTERRUPTED. EXCEPT WHERE OTHERWISE PROHIBITED OR LIMITED BY LAW, THIS PROVISION REPRESENT’S CLIENT’S SOLE REMEDY AS REGARDS A WARRANTY CLAIM.

20. INDEMNIFICATION. Each Party shall indemnify and defend the other Party against any third-party claims arising from the indemnifying Party’s gross negligence or willful misconduct. Client shall indemnify and defend Data Axle against any third-party claims arising from Client or its Affiliates’: (a) use of the Product Suite in violation of the terms of this Agreement or Schedule; and (b) data provided to Data Axle that infringe a third party’s intellectual property right. Data Axle shall indemnify and defend Client against any third-party claims arising from Data Axle’s Product Suite infringing a third party’s intellectual property right. If Data Axle receives information regarding an infringement claim related to the Product Suite, Data Axle may in its sole discretion: (i) modify the Product Suite so that the Product Suite is no longer infringing; (ii) obtain a license for Client’s continued use of the Product Suite; or (iii) terminate the Product Suite and refund Client for any prepaid fees for unused Product Suite. Data Axle’s indemnity for intellectual property infringement stated above only applies if: (1) the allegation states with specificity that the Product Suite is the basis for the claim for indemnification; (2) the allegation arises from the use of the Product Suite with software, hardware, data, or processes provided directly by Data Axle; and (3) Client uses the Product Suite in accordance with this Agreement or Schedule.

The indemnified Party shall give the indemnifying Party advance written notice of any claims for indemnification. The indemnified Party agrees to relinquish control of defending any such claim to the indemnifying Party, including the right to settle; provided, however, the indemnifying Party may not settle any such claim without the indemnified Party’s prior written consent if such settlement would be adverse to the interests of the indemnified Party. This section states the entire liability of each Party with respect to third-party claims.

21. LIMITATIONS ON LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR “COSTS OF COVER” ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING OUT OF ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF DATA AXLE AND ITS AFFILIATES TO CLIENT AND ITS AFFILIATES, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO DATA AXLE FOR THE SERVICES, DATA, OR PRODUCT SUITE FROM WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

22. FORCE MAJEURE. Neither Party will be responsible for any failure to perform (except for Client’s payment obligations) due to unforeseen circumstances or to causes beyond its control, including but not limited to acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, earthquakes, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials, denial of service attacks, or failures of telecommunications or electrical power supplies (“Force Majeure Event”). Both Parties shall use all reasonable efforts to overcome or work around the Force Majeure Event as soon as reasonably practicable.

23. RESTRICTED ENTITIES. “Restricted Entities” include DiscoverOrg; Experian PLC; Equifax Inc.; Epsilon Data Management LLC; Insideview; KBM Group; Merkle Group Inc.; MeritDirect: Acxiom; DatabaseUSA; Dun and Bradstreet, Inc.; Allant Group, LLC; HERE Technologies; Factual, Localeze, Locationary, Inc. Neustar Inc., Safegraph; TomTom N.V., TransUnion; Thomson-West, Knowledgebase, Database LLC, Accudata Integrated Marketing, Inc.; Compass, Zoominfo or any subsidiaries or affiliates of these Restricted Entities. Data Axle may revise the list of Restricted Entities upon written notice to Client.

24. ASSIGNMENT. Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the other Party’s prior written consent; provided, however, either Party may assign this Agreement in its entirety, without the other Party’s prior written consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of its assets related to this Agreement. Client may not assign this Agreement in whole or in part if the merger, acquisition, corporate reorganization, or the sale of all or any of the assets involves a Restricted Entity. Any attempted assignment in violation of this Section will be deemed null and void. This Agreement will be binding upon and will inure to the benefit of the Parties hereto and their respective heirs, representatives, successors, and permitted assignees.

25. MODIFICATIONS, SCHEDULES, STATEMENTS OF WORK. No modification of this Agreement, Schedule, or Statement of Work will be binding upon Client and Data Axle unless made in writing and signed by duly authorized officers of both Parties. However, in the event Data Axle ceases to provide a certain Product Suite, Data Axle may, in Data Axle’s sole discretion, unilaterally replace that certain Product Suite with a comparable Product Suite as long as Data Axle provides Client with a three (3) months’ notice about the replacement.

26. REMEDIES AND WAIVERS. All remedies hereunder are cumulative and the exercise by any Party of any rights hereunder will not preclude such Party from pursuing any additional remedies available to it under this Agreement, or any other legal or equitable rights afforded such Party. The failure of either Party to require the performance of any term or condition of this Agreement will not prevent any subsequent enforcement of this term or condition, nor will it be deemed a waiver of any subsequent breach.

27. GOVERNING LAW, CONSENT TO JURISDICTION, AND WAIVER OF JURY TRIAL. This Agreement is governed by the laws of the State of Nebraska, without regard to the conflicts of law principles. The Parties irrevocably submit to the exclusive jurisdiction of any United States federal or Nebraska state court located in Omaha, Nebraska with respect to any matter arising out of or relating to this Agreement. THE PARTIES AND ANY OF THEIR AFFILIATES WAIVE THE RIGHT TO A TRIAL BY JURY ON ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT.

28. STATUTORY EXCEPTION. If Client is a qualified public educational or government institution, any part of this Agreement which may be invalid or unenforceable against Client because of applicable law will be deemed invalid or unenforceable and will be construed in a manner consistent with applicable law. If required by applicable law, this Agreement will be governed by the applicable law to enter into an agreement with Client.

29. SEVERABILITY. A decision by any court of competent jurisdiction invalidating or holding unenforceable any part of this Agreement will not affect the validity and enforceability of any other part of this Agreement.

30. RELATIONSHIP OF THE PARTIES. Each Party will perform its obligations under this Agreement as an independent contractor, not as the other Party’s employee, partner, or agent.

31. THIRD PARTY BENEFICIARIES. Except for Section 13 if applicable, there are no third-party beneficiaries to this Agreement.

32. NOTICES. Any notice required will be given in email or writing. If the notice is delivered by email, the notice will be deemed effectively given when the other Party acknowledges having received that email. If the notice is delivered in writing, the notice will be deemed effectively given upon personal delivery, deposit in the U.S. post office as certified or registered mail, or deposited with a private next day delivery service.

All correspondence to Client required by this Agreement will be addressed to the contact information within the Schedule, Order Form, or Statement of Work.

All correspondence to Data Axle required by this Agreement will be addressed as follows:

Data Axle Inc.
Legal Department
13155 Noel Road #1750
Dallas, TX 75240

33. SURVIVING PROVISIONS. The following provisions will survive the termination or expiration of this Agreement for any reason: Sections 2 – 10, 12, 15 – 21, 23, 26, 27, 29 – 34, as well as any other provisions which, by their nature, are intended to survive termination or expiration of this Agreement.

34. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, and all of which will together constitute one and the same agreement and will become effective when signed by the Parties and delivered to the other Party in person or by other reliable electronic means. The Parties agree that this Agreement, once validly executed, may be stored by electronic means and that either an original or an electronically stored copy of this Agreement can be used for all purposes, including in any proceeding to enforce the rights and obligations of the Parties to this Agreement.

(This Agreement was last updated on September 4, 2020.)