Reseller Terms of Service (archive)

1.1 Term. The term of the Agreement (“Term“) will begin on the date identified in the Order (“Effective Date“) and will continue for the time-period identified in the Order, or, if no time-period is identified in the Order, for one year, unless earlier terminated in accordance with Section 1.2. Once the Order has been executed or approved as specified in the Order, unless otherwise expressly provided therein, neither party may revoke or terminate the Agreement, in whole or in part, for convenience or for any reason other than as set forth in Section 1.2.

1.2 Termination. Either party may immediately terminate the Agreement upon written notice to the other party if: (i) the other party is in default of the Agreement and fails to cure, or begin implementation of a mutually-agreed-upon plan to cure, such default within 30 days of written notice from the other party specifying the nature of such default and requiring its remedy; (ii) the other party petitions for relief under the Federal Bankruptcy Code or any involuntary petition is filed against the other party and is not dismissed within 60 days; (iii) relief under the Federal Bankruptcy Code is granted with respect to the other party as a debtor; (iv) the other party makes a general assignment for the benefit of creditors; or (v) the other party ceases doing business, assigns, or attempts to assign any portion of the Agreement to an entity other than as provided in Section 18.3.

2.1 General. Acxiom hereby appoints Client, on a non-exclusive basis, to promote, market, or resell to prospective End Users (defined below) those certain Products or Services identified in the Order for use as permitted in the Order by and for the benefit of named End User clients only. Products and Services are hereinafter referred to collectively as “Products“, unless the context requires that they be referred to individually. Each party shall bear all of its own costs, risks, and liabilities incurred by it arising out of its performance under the Agreement. As used herein, “End User” means a third party to whom Client offers the Products in accordance with the Agreement, either directly or indirectly through Client’s sales distribution channels, for use in the regular course of such third party’s internal business needs and in accordance with the terms of the Agreement, and not for resale.

2.2 Order Fulfillment. Client may submit orders for Products on behalf of End Users to be delivered using traditional delivery media or methods (e.g., batch, SFTP, OLTP, or Express Batch) or via one of Acxiom’s online delivery systems (e.g., DS-API, ListDirect, MyAcxiom, or ListKey).

2.3 Certification. Prior to providing Client online access to the Products or Services, Acxiom must review and provide certification approval of Client’s connectivity into the applicable Acxiom delivery system, which approval Acxiom will not unreasonably withhold. Such certification will be conducted in accordance with Acxiom’s then-current system certification documentation, which Acxiom may change from time to time in its sole discretion. Acxiom will provide a current copy of such documentation to Client and Client will cooperate with Acxiom in the certification process. Acxiom will perform the certification testing and notify Client of acceptance or nonconformance within a reasonable time-period following completion of the certification process. In the event of any nonconformance, Client will have up to two additional opportunities to resubmit a modified Client interface for further certification testing until such time as the Client interface has been approved. The parties agree that as part of the certification process, Acxiom may, in its sole discretion, disclose certain software source code to Client and that the code is provided on an “as is” basis. In no event will Acxiom be liable for any damages Client may suffer from Client’s use of the code.

2.4 No License; Restricted Applications. Client acknowledges that the data in the Products are the proprietary or copyrighted property of Acxiom or the suppliers who provided the data to Acxiom (the “Data Providers“), and that neither Client nor the End Users have any proprietary rights to the Data or the Products. Except as otherwise expressly set forth in this Agreement or in the Order, no license to Acxiom’s Products is granted to Client. Except as otherwise set forth in the Order, Acxiom shall be responsible for licensing, fulfilling, supporting and delivering its Products. Client shall not make any statements or commitments with respect to scheduling, pricing or delivery of the Acxiom Products in the promotion of such Products without Acxiom’s prior written consent. Neither Client nor its End User clients may use any Acxiom Products as a factor in establishing an individual’s creditworthiness or eligibility for (i) credit or insurance, or (ii) employment. Neither Client nor its End User clients shall use any Acxiom Products to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, weapons, or involving credit repair services.

2.5 Excusable Delay. Acxiom’s delay or non-performance of its obligations under the Agreement will be excused to the extent caused by Client’s failure to perform its obligations under the Agreement. Acxiom will provide Client with reasonable notice of such non-performance or delay and will use commercially reasonable efforts to continue to perform. Client will continue to pay Acxiom for Services actually performed and Products actually delivered by Acxiom prior to and during any such period.

2.6 Consumer Issues.

(a) Client will accept and respond to any communication initiated by a consumer, consumer advocacy group, anti-spam advocacy group, or internet service provider (ISP) arising out of Client's use of the Products or Services. If an express request is received from a consumer for the source of the consumer's personal information, Client may reference Acxiom as a source of such information, provided Client has first verified Acxiom as the source. Client must: (i) promptly notify Acxiom of such request and provide Acxiom with a transcript or written description of the communication with the consumer; and (ii) if the information in question is an email address provided as part of the Products, unsubscribe the consumer as soon as practicable from receiving commercial email from Client and inform the consumer of the same.

(b) In any use of Products or Services, Client must honor all consumer elections not to receive marketing solicitations or consumer requests to exercise a right granted to the consumer by applicable law. If such election is related to email marketing, Client must unsubscribe the consumer within ten business days from receipt of the request or election. It is Client's sole responsibility to ensure that the most current, legally required suppression information has been applied prior to marketing use of Client's own files or of any Product or Service provided to Client.

2.7 Data Processing. If the parties will be exchanging personal data for processing or other use in accordance with the Order, the parties’ responsibilities with respect to data processing will be governed by the terms of the Order (and any other terms incorporated by reference therein) and the Data Processing Addendum (DPA) to these Terms of Service, the terms of which shall supplement these Terms of Service.

2.8 Acxiom Locations and Personnel. All Services performed pursuant to the Agreement may be performed, in whole or in part, by any employees, agents, contractors, subcontractors, or consultants (“Personnel“) of Acxiom or its Affiliates from: (i) any facility or location that is owned or leased by Acxiom, its Affiliates, or its subcontractors; (ii) any facility or location that is owned by a third party, a portion of which is available for use by Acxiom, its Affiliates, or its subcontractors, such as through a co-location arrangement; or (iii) a third-party cloud environment. Acxiom’s Personnel will access personally identifiable information (PII) only to the extent required to perform the Services or processing assigned to such Personnel. Any act or omission of Acxiom’s Personnel will be deemed to be the act or omission of Acxiom, for which Acxiom will be liable in accordance with the terms of the Agreement. As used herein, “Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party to the Agreement. For purposes of the Agreement, “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of an entity, whether through ownership of voting securities, by contract, or otherwise.

2.9 Replacement. If any tool, Product, Service, or any part thereof, used in connection with the Order will become unavailable during the term of the Agreement, Acxiom will provide advance written notice to Client and will procure a replacement for such item(s) that will meet the delivery obligations required by the Agreement; provided, however, that any changes to specific Data Product elements provided pursuant to the Order will not fail to meet the delivery obligations of the Agreement unless: (i) such changes materially diminish Client’s ability to continue using the Data Products as a whole for the purposes described in the Agreement; and (ii) Acxiom is not able to provide replacement Data Product elements.

Unless expressly provided otherwise in the Order, the following restricted sales lists apply to Client’s marketing of the indicated Products to prospective End Users. These restrictions are in addition to any sales restrictions that may be set forth in the Order. Any changes to the names of listed Products or Acxiom Competitors will not affect the restrictions set forth herein, which will continue to apply notwithstanding such name change.

3.1 Acxiom Competitors. Client will not place orders for, resell, sublicense, or otherwise make available any Products to the Acxiom competitors listed in the Order. Such list may be updated from time to time at Acxiom’s sole discretion upon written notice to Client.

3.2 Personicx Syndicated Data Reports. Client is prohibited from marketing or providing Personicx analytic reports that are based on or that use syndicated data to any End User that falls within the following categories: (i) media or advertising industry; (ii) advertising, promotion, media buying, or direct mail agencies; or (iii) magazines, newspapers, TV and radio networks or cable companies, yellow page distributors, outdoor advertising companies, or ad-supported internet service and content providers.

3.3 Claritas Data. Client is prohibited from marketing or providing any such Claritas Products to the following restricted entities: Applied Geographic Solutions (AGS); ASTECH InterMedia, Inc.; Asterop; The Buxton Client; ChoicePoint; Comscore Networks; The Dun & Bradstreet Corporation; Environmental Systems Research Institute, Inc. (ESRI); Equifax; EuroRSCG; Experian; geoVue; Information Exchange, Inc. (IXI), including Cohorts; Information Resources, Inc. (IRI); infoUSA, including Donnelly Marketing; MapInfo Corp.; Merkle; Pitney Bowes, including PB MapInfo, Thompson Associates, and MarketTech Systems; R.L. Polk; ScanUS; SitesUSA; SRC; Synergos Technologies Inc., including STI PopStats; Tactician Corporation; TARGUSinfo, including Amacai; The Gadberry Group; Tetrad; TNS Telecoms Inc.; TransUnion; and Urban Science (USAI).

3.4 Restricted Telephone Data. Any requests for Acxiom’s Restricted Telephone Number Data requires a valid exemption from requirement(s) to register pursuant to regulations of the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and any other applicable governing or regulating entities, along with End User’s signature on a separate waiver form, a copy of which will be provided to Client. Client must obtain End User’s execution of such waiver and submit the signed waiver to Acxiom prior to completion of processing.

3.5 Audience Propensities Data. For any Audience Propensities Data element that is classified as “Restricted”, Client will not offer or sell the Restricted element to any End User unless Acxiom has approved in writing the availability of the Restricted element for resell, which approval Acxiom may withhold in its sole discretion. Acxiom may require Client to provide additional documentation, which Client may have to obtain from the End User, regarding the use of the Restricted element(s).

Client will, using the minimum credentialing procedures set forth on Exhibit B attached hereto and made a part hereof, conduct validation requirements to confirm that each End User is a legally formed business, such as a corporation, limited liability company, partnership, or sole proprietor under the laws of the applicable state of formation, and that the End User has a valid purpose for licensing the applicable Products. Client will not license the Products to an individual, other than to a sole proprietor business that meets all of the requirements herein. Client will not license the Products to any entity that represents or uses only a post office box as its address. Client will not rent or otherwise provide the Products to any entity doing business in the following restricted industries, except upon Acxiom’s prior written consent: credit repair, debt counseling, payday loans, pornography, or illegal or illicit products, services, drugs, or weapons.

5.1 Data Use Terms. Client will ensure that End Users execute an agreement (“End User Agreement“) between the End User and Client that contains, at a minimum, the Data Use Terms (the “Data Use Terms“) set forth on Exhibit A attached hereto and will ensure that the End User complies with the Data Use Terms. Acxiom reserves the right to require additional terms to be inserted into the Data Use Terms from time-to-time at its sole discretion, and Client shall ensure that such additional terms are included in Client’s End User Agreement with each End User after the receipt by Client of such amended terms. Any changes requested by an End User or Client to the Data Use Terms shall be subject to Acxiom’s prior written approval. Any failure by Client to enforce End User’s compliance with End User Agreement shall constitute a breach of this Agreement and Acxiom shall have the right, in addition to any other remedies available at law, to suspend any further delivery of all Products to Client until such time as the End User remedies any such non-compliance. For avoidance of doubt, Client acknowledges that Acxiom shall have no liability to End User relating to Client’s End User Agreement. Client shall defend, indemnify, and hold harmless Acxiom from and against any and all suits, claims, and actions, and the damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising therefrom, arising out of or resulting from the End User’s misuse or unauthorized use of the Products or the End User’s failure to comply with its obligations and responsibilities under the End User Agreement. In the event Client has access to or use of the Products on behalf an End User, Client’s use of the Products shall be subject to the terms and conditions of this Agreement, including Exhibit A, as if Client were the End User.

5.2 General Restrictions. The Products are to be used solely for the marketing of the applicable End User’s products and services. The Products shall not be: (i) used as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance, or employment, or in connection with credit repair services; (ii) used in individual-look-up reference applications; (iii) provided by Client to any third party; (iv) used in the development of any products to be provided to a third party, including the support or sale of advertising services to a third party; (v) used to advertise, sell, or exchange any illegal or illicit products or services, including pornography, illegal drugs, or illegal weapons; and (vi) reproduced, modified or reverse engineered.

5.3 Marketing Communications. All marketing communications used in connection with any list or data element provided to Client shall be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation or the source of the recipient’s name and address. If requested, Client will provide Acxiom with a representative sample of any marketing communication pertaining to use of the Products. Any email deployed by Client using the Products will: (i) contain an opt-out provision; (ii) identify the applicable End User and provide a valid physical address; and (iii) clearly express the intent of the email communication.

Client will at all times maintain current, accurate, and complete books and records relating to its compliance with the obligations and responsibilities set forth in this Agreement, including, but not limited to, Client’s usage of the Products and any payments due Acxiom. Client will permit Acxiom to inspect, during normal business hours and upon five (5) business days notice, any location where the Products are being possessed or used. Such audit will be strictly limited to those books, records, and computer systems that specifically relate to information pertinent to Client’s compliance with the requirements of this Agreement, the possession or use of the Products, and, if applicable, any fees due. Any such audit will be conducted in a manner that does not disrupt Client’s normal operating procedures or violate any other confidentiality obligations that Client has to its customers. If Acxiom determines that Client is not in compliance with any of its obligations or responsibilities under the Agreement, Acxiom will so notify Client and the parties will work in good faith to resolve and remediate any such noncompliance. If Client fails or refuses to remediate any such noncompliance, then Acxiom will have the right to suspend Client’s use of the Products, and Client will be deemed in breach of the Agreement. In such event, Acxiom will so notify Client in accordance with the requirements of the Agreement.

7.1 Pricing. Client will pay Acxiom for Services and Products in accordance with the pricing set forth in the Order. Unless otherwise specified in the Order, all charges are exclusive of taxes. Unless otherwise specified, a minimum annual price increase may be implemented using the Consumer Price Index for All Urban Consumers – Other Goods and Services as published by the U.S. Department of Labor, Bureau of Labor Statistics.

7.2 Taxes. Client will pay all taxes (including sales, use, excise, value added, goods and services, turnover taxes, business taxes, consumption taxes, gross receipts taxes, withholding taxes, and any other taxes, charges, duties, fees, and levies of a similar nature) levied in connection with the Agreement (whether included on an invoice or identified during an audit), except taxes based upon Acxiom’s net income, corporate franchise, business license, payroll withholding or property taxes on Acxiom-owned assets. Acxiom will collect taxes from Client only for taxing jurisdictions with which Acxiom has a nexus. Client will provide Acxiom with any United States state tax exemptions in a timely manner. If Acxiom does not collect taxes for any reason, Client remains responsible for remitting taxes when appropriate to the applicable taxing authority as the consumer of the goods or services. The parties will cooperate with each other in connection with any audit, inquiry, trial, or appeal regarding taxes in connection with the Agreement, including any tax determination or exemption documentation. Client is not responsible for penalties or interest arising from Acxiom’s failure to properly collect or remit taxes to the applicable tax authorities. If Client is required under the laws of any jurisdiction to withhold taxes from any of the payments made by Client pursuant to the Agreement, then: (i) the amount payable will be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this section) Acxiom receives an amount equal to the amount it would have received had no such deductions been made; (ii) Client will make such deductions; (iii) Client will pay the full amount deducted to the relevant governmental authority in accordance with applicable law; and (iv) Client will promptly provide Acxiom satisfactory evidence of such payment upon request. If applicable, Acxiom will provide evidence of its exemption from withholding taxes.

7.3 Expenses. Client will pay for all reasonable travel and expenses incurred by Acxiom in connection with the performance of Services in accordance with Client’s reimbursement policy made known to Acxiom in writing, or, in the absence thereof, in accordance with Acxiom’s reimbursement policy. Client will reimburse Acxiom for all costs incurred by Acxiom in responding to any government agency inquiry or a third-party subpoena related to Client’s activities or business.

7.4 Payment. Payment of invoiced amounts is due within 30 days of receipt of invoice (if sent via electronic transmission, Client receipt is deemed to be the date of such transmission). Acxiom will deliver auto-generated “.pdf” invoices to Client via email. Any other invoice delivery method (e.g., third-party portals) will be subject to prior review and mutual agreement of the parties, provided that Client remains responsible for any applicable processing fees that are outside the scope of Acxiom’s standard invoice delivery. If Client disputes the validity of an invoiced fee, Client must provide prompt written notice to Acxiom stating the details of any such dispute. If only a portion on an invoice is in dispute, Client will pay all undisputed amount in accordance with the terms of this section. Acceptance by Acxiom of any partial payment does not constitute a waiver of the disputed amounts. Any undisputed amounts not paid within 30 days of receipt of invoice will accrue interest at a rate of one percent per month or the maximum lawful rate, whichever is less, with such amount accruing and determined as of the date such undisputed amount was originally due.

8.1 Work Product. Any deliverables created specifically for Client by Acxiom under the Agreement, exclusive of Acxiom Intellectual Property (“Work Product“), will be owned by Client and considered work made for hire by Acxiom for Client. To the extent that any Work Product is not considered a work made for hire, Acxiom agrees to assign all right, title, and interest in and to such Work Product to Client.

8.2 Acxiom Intellectual Property. The following “Acxiom Intellectual Property” will be and remain the sole property of Acxiom, its Affiliates, or its or its Affiliates’ licensors: (i) Data Products; (ii) all software (including source code and object code) and related documentation that is commercially licensed by Acxiom or its Affiliates to their clients or licensed by Acxiom or its Affiliates from a third party; (iii) all components of Acxiom’s, its Affiliates’, or their licensors’ identity-resolution Products, including AbiliTec® and its associated Links sourced through Acxiom, RampIDs sourced through Acxiom, or any other logic or process used by Acxiom or its Affiliates to match or integrate data; (iv) all systems, mechanisms, hardware configurations, or other tools created or used by Acxiom or its Affiliates to build a database or perform Services; (v) all inventions, discoveries, works, materials, products, devices, coding, designs, specifications, processes, or other information or documentation created or acquired by Acxiom or its Affiliates outside the scope of the Agreement or prior to the performance of the Services; and (vi) any intellectual property related to items (i) through (v). Client will have no interest in, or claim to, Acxiom Intellectual Property, or any derivatives thereof or modifications or adaptations thereto, except as specifically granted herein. Acxiom or its Affiliates may reuse any ideas, concepts or know-how developed or acquired during the performance of the Agreement, exclusive of Client Confidential Information. Nothing in the Agreement will preclude Acxiom or its Affiliates from acquiring, developing, or marketing for itself or others technology performing the same or similar functions as the Work Product.

9.1 Confidential Information. During the Term, the parties may, either pursuant to an Order or as part of discussions, demonstrations, tests or analyses related to a potential business project between the parties, disclose to one another, or other entities may disclose to a party on the other party’s behalf, certain confidential information (collectively, “Confidential Information“), including: (i) with respect to Client, Client’s consumer or business data, including, without limitation, Client’s data and any data Client may license from third parties (collectively, “Client Data“), consumer or business data of Client’s third-party marketing partner(s), tapes, mailing lists, product designs, business and marketing plans, and product strategies; (ii) with respect to Acxiom, Acxiom Intellectual Property, pricing information, product designs, capabilities, specifications, solution design documents, layouts, hardware configurations, flowcharts, presentations, and analysis reports or results from the testing of any products, as well as any information of Acxiom’s or its Affiliates’ clients, prospects, or vendors that is stored and used within an Acxiom or Acxiom Affiliate’s facility; (iii) the terms or conditions of this Agreement, which will be the Confidential Information of both parties; (iv) any other materials properly marked “confidential” or “proprietary” or that a reasonable person in the industry would consider to be confidential or proprietary; and (v) any information derived from or related to the foregoing.

9.2 Obligations. Each party will use commercially reasonable efforts to prevent the unauthorized access to or disclosure of the other party’s Confidential Information, including derivative works, modifications, or adaptations. Each party will limit access to the other party’s Confidential Information to its own or its Affiliates’ Personnel strictly on a “need to know” basis; provided, however, that such Personnel have executed an agreement with such party containing confidentiality provisions at least as restrictive as those contained herein. Upon termination of this Agreement, each party will promptly destroy all of the other party’s Confidential Information then held and, upon request, certify such destruction in writing.

9.3 Injunctive Relief. The unauthorized disclosure of any aspect of Confidential Information is likely to give rise to irreparable injury which may be inadequately compensable in damages. Accordingly, either party may obtain injunctive relief against the breach or threatened breach of this Section 9, in addition to any other legal remedies that may be available, and each party consents to the obtaining of such injunctive relief.

9.4 Unauthorized Disclosure. Each party will, as soon as reasonably practical after discovery, report to the other party any unauthorized disclosure or access to the other party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident and will take all reasonable measures to prevent any further unauthorized disclosure or access.

9.5 Mandated Disclosure. If a receiving party is required to provide Confidential Information of a disclosing party to any court or government agency pursuant to a written court order, subpoena, regulatory demand, or process of law (each, a “Mandated Disclosure“), the receiving party must: (i) unless prohibited by applicable law, provide the disclosing party with prompt written notice and reasonable cooperation if a protective order is sought by the disclosing party; (ii) take reasonable steps to limit any such disclosure only to the Confidential Information required to be compliant with the Mandated Disclosure; and (iii) continue to otherwise protect all Confidential Information disclosed in response to such Mandated Disclosure.

9.6 Exceptions. Notwithstanding anything in this Agreement to the contrary, Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the party receiving the information; (ii) was in the lawful possession of the party receiving the information prior to the disclosure and had not been obtained either directly or indirectly from the party disclosing the information; (iii) is lawfully disclosed by a third party without restriction on disclosure; or (iv) is independently developed by the party receiving the information without use of, or reference to, Confidential Information of the other party.

10.1 Acxiom Warranties. Acxiom warrants that: (i) it has the necessary equipment, computer capacity, software, programs, and trained personnel to properly perform the Services and provide the Products consistent with standard industry practices; (ii) it will perform the Services in a professional and workmanlike manner; and (iii) any Data Products will be, upon delivery, as current, accurate, and complete as may be reasonably achieved using the source data and the compilation and data processing methods normally employed by Acxiom or its Affiliates.

10.2 Client Warranties. For any data about an individual disclosed to Acxiom by Client or by a third party on Client’s behalf, Client warrants that it will not instruct Acxiom to process or to take any other action with such data if Client knows, or should reasonably know, that such action would violate an applicable law, Client’s own published privacy policies, or any other published privacy policies or notice and disclosure statements under which such data was collected. Client further warrants that: (i) neither it nor any permitted third party to whom it provides Products is an entity “controlled by a foreign adversary” under the Protecting Americans’ Data from Foreign Adversaries Act (PADFA); (ii) it will notify Acxiom in writing if it or any such third party becomes such an entity; and (iii) it will cease providing Products to any such third party that becomes such an entity if advised to do so by Acxiom.

10.3 Mutual Warranties. Each party warrants to the other that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) the Agreement does not violate any law, statute, or regulation and does not breach any other agreement or covenant to which it is a party or is bound; (iv) its Confidential Information has been legally obtained; (v) the provision of its Confidential Information to the other does not violate any laws or agreements with third parties; and (vi) it will otherwise comply with all applicable laws, rules, and regulations.

10.4 Warranty Disclaimers. EXCEPT AS STATED IN THIS SECTION 10 OR AS EXPRESSLY PROVIDED IN THE ORDER, THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ANY WARRANTIES OF ACCURACY, COMPLETENESS, OR CURRENTNESS.

10.5 Suspension of Performance. Either party may suspend or discontinue the performance of the Services or the delivery of the Products if, in its reasonable judgment, the performance of the Services or the delivery of the Products would violate any applicable law, rule, or regulation. Such action will not constitute a default under the Agreement. The parties will use commercially reasonable efforts to implement an alternative method of performing the Services or delivering replacement Products. If an alternative method cannot be reasonably implemented, Acxiom will refund any fees pre-paid by Client for Services not performed or Products not delivered.

Acxiom’s sole obligation and Client’s exclusive remedy for any claim of defective Services or Products is to correct, re-perform, or re-deliver, as applicable, the Services or Products in question without charge, or, if re-performance is commercially impracticable, to refund the price paid by Client for such Services or Products. Client must provide written notice to Acxiom of any such claim in sufficient detail with any necessary backup information or documents. With respect to any Data Products, Client acknowledges that some corrections of errors in the Data Products are dependent on the availability of same from the source of the applicable data.

12.1 Indirect Damages. SUBJECT TO SECTION 12.3, Neither Party will be liable for any indirect, incidental, special, or consequential damages (including loss of income, revenue, profits, or goodwill, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), even if a party has been advised of the possibility of such damages in advance.

12.2 Aggregate Liability. SUBJECT TO SECTION 12.3, Acxiom’s aggregate liability FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THE AGREEMENT will be limited to twelve (12) MONTHS’ FEES paid by Client.

12.3 Form of Action; Exclusions. The limitations in this Section 12: (i) will apply regardless of the legal theory or form under which any action is brought; and (ii) will not apply to a party’s indemnification obligations set forth in Section 13 or to damages resulting from a party’s gross negligence or intentional misconduct. For purposes of the Agreement, “gross negligence” will mean the intentional failure to perform a manifest duty in reckless disregard of the consequences. Each party will have a duty to mitigate damages for which the other party is responsible.

13.1 General. Each party agrees to indemnify and hold the other party, its agents, and its employees harmless from and against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the indemnified party as the result of: (i) injuries or property damage caused by the indemnifying party’s employees; (ii) the indemnifying party’s failure to comply with all applicable laws and regulations; and (iii) the misappropriation or intentional misuse of the indemnified party’s Confidential Information by the indemnifying party. The indemnifying party will have the right to exercise reasonable control over any litigation within the scope of this indemnity; provided, however, that the indemnified party will have the right to participate in any such litigation insofar as it concerns claims against it. That right to participate includes the indemnified party’s right to select and retain counsel to represent it at the indemnified party’s own expense.

13.2 Infringement.

(a) Except as provided below, each party will defend and indemnify the other from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claim that the materials provided to it by the indemnifying party pursuant to the Agreement (including any Client-provided data or other content, Work Product, or Confidential Information) infringes a valid patent, trademark or copyright, or misappropriates a trade secret of a third party, provided that: (i) the indemnified party has provided prompt written notice of such claim and reasonable cooperation, information, and assistance in connection therewith, and (ii) the indemnifying party will have sole control and authority with respect to the defense, settlement, or compromise of any such claim.

(b) Should the Services or Products, or any part thereof, become, or in Acxiom’s opinion, be likely to become, the subject of a claim of infringement, Acxiom may, at its option and expense, either procure for Client the right to continue using the Services or Products or replace or modify the Services or Products so as to make them non‑infringing. If replacement or modification is not possible or is commercially unreasonable, Client will receive a pro rata refund of the fees paid to Acxiom with respect to the particular Services or Products that are the subject of such claim.

(c) Section 13.2(a) and Section 13.2(b) state the entire liability of Acxiom and the sole and exclusive remedy of Client with respect to any claim of infringement. Neither party will have any liability or obligation to the other for any infringement claim to the extent caused by or based upon: (i) the combination of materials with other products or services not furnished or authorized by the party providing the materials; or (ii) additions or modifications made to the materials after delivery that are not made by the party providing the materials or authorized by the Agreement.

13.3 Failure to Notify. No party will have any obligation to defend or indemnify the other party pursuant to this Section 13 if the indemnifying party is not notified promptly of the claim and is materially prejudiced thereby. The indemnified party will cooperate to the extent necessary in the defense of any claim within the scope of these indemnities.

Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war (whether or not declared), riot, flood, civil commotion, insurrection, severe weather conditions, or any other cause beyond the reasonable control of the party delayed.

Acxiom will perform all Services and deliver all Products hereunder as an independent contractor, and nothing contained herein will be deemed to create any employment, association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties hereto or any of Client’s Affiliates or subsidiaries, or to provide either party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.

Acxiom may include Client and Client’s logo on its client list in presentations, white papers, or reports made to clients or potential clients, or to its parent company’s shareholders or stock analysts, provided no representation, express or implied, is or will be made as to Client’s opinion of Acxiom’s Services or Products. Any proposed press releases, advertising, or other promotional materials that use the other party’s name or trademark must be sent to the other party for approval, which will not be unreasonably withheld.

Any notice or other communication required under the Agreement or applicable law will be made by electronic mail and deemed to be given upon receipt of transmission. Notices or other communications will be sent: (i) to the email address(es) of the person(s) listed in the Order as a contact for the party to be notified; (ii) to the email address(es) of the person(s) executing or otherwise formally approving the Order for the party to be notified (or, in the case of Acxiom, issuing the Order); or (iii) to such email address(es) as may be designated in writing by the party to be notified. A party may change the name or email address of the designated recipient by giving notice to the other party in writing. If any notice or other communication is given to Acxiom pursuant to this provision, then in addition to the above, Client must send a copy of such notice or communication to legalsupport@acxiom.com. Client will provide a contact in the Order for any legal or compliance issues that may arise.

18.1 Applicable Law. The Agreement will be governed and construed in accordance with the laws of the State of Delaware USA, without regard to conflict of law principles.

18.2 Conflicting Provisions. In the event of conflicting provisions between these Terms of Service, including any addenda to the Terms of Service, and the Order, these Terms of Service will control and resolve the conflict, unless the Order expressly states that the provision in the Order controls or supersedes in the event of a conflict. In the event of any conflicting provisions between these Terms of Service, including any addenda to these Terms of Service, and any other terms incorporated by reference in the Order, the other terms incorporated by reference will control and resolve the conflict solely as to the subject-matter thereof. In the event of conflicting provisions between these Terms of Service and any addenda to these Terms of Service, the addendum will control and resolve the conflict solely as to the subject-matter thereof.

18.3 Assignment. Neither party may assign its rights or obligations under the Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed; provided, however, that no consent will be required for assignment by either party: (i) to an Affiliate or other entity under common control with such party; or (ii) in connection with a direct or indirect purchase, merger, reorganization, consolidation or sale of all or a portion of the assigning party’s assets. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

18.4 No Third-Party Beneficiaries. Except as otherwise expressly provided for in the Agreement, no provision of the Agreement is intended to confer rights or other benefits to any third party.

18.5 Approvals and Consents. Any approval or consent requested of either party will not be unreasonably withheld, delayed, or conditioned, unless specifically stated to the contrary in the Agreement.

18.6 Survival of Terms, Rights, and Remedies. Any provision of the Agreement which contemplates performance or observance subsequent to the expiration of the Term or any termination of the Agreement, including all provisions with respect to payment of accrued amounts, intellectual property, confidentiality, limitation of liability, and indemnification, will survive any termination of the Agreement and continue in full force and effect, and no termination will impair or otherwise affect any rights or remedies at law or in equity that arose prior to such termination.

18.7 Execution of Agreement. If the Order is of a type that is to be executed by the parties (rather than mutually approved via another method specified in the Order), then the Order may be executed in any number of counterparts, including via the exchange of .pdf copies or by the use of a mutually agreeable electronic signature authentication program, each of which may be executed by less than all of the parties hereto and will be enforceable with respect to the parties actually executing such counterparts.

18.8 Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject-matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties. No terms or conditions of either party’s invoice, purchase order, or other administrative document (unless signed or otherwise formally approved by authorized representatives of both parties and expressly referencing that it amends the Agreement) will be effective as a modification of the terms and conditions of the Agreement, regardless of the other party’s failure to object to such form.

The terms set forth in this Section I shall be applicable to any Products sublicensed by Client to its End User customers and shall be included in Client’s End User Agreement with each End User:

1. Title. [Name of End User] (“End User”) acknowledges that the Data shall at all times remain the intellectual property of [Name of Client] (“Company”) licensors and third party data owners (collectively the “Data Owner”) who provided the Data to Company, including, without limitation, Acxiom LLC (“Acxiom”), and that End User has no proprietary rights whatsoever in the Data.

2. End User Warranty. End User warrants that: (a) it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform the Agreement; and (d) the execution and delivery of the Agreement have been duly authorized. End User further warrants that: (i) neither it nor any permitted third party to whom it provides Products is an entity “controlled by a foreign adversary” under the Protecting Americans’ Data from Foreign Adversaries Act (PADFA); (ii) it will notify Company in writing if it or any such third party becomes such an entity; and (iii) it will cease providing Products to any such third party that becomes such an entity if advised to do so by Company.

3. Term/Termination/Events Upon Termination. Company grants to End User a limited, non-transferable, non-exclusive license (“License“) to possess and use the Data Products ordered hereunder, subject to the terms of this Agreement for a period of one year from the Company’s acceptance of the applicable order form under which the Data Products are ordered from Company. Upon expiration of the one-year License period described above, or upon any termination of this Agreement for any reason, End User shall, at Company’s option, destroy or return to Company the Data and any copies thereof and within five (5) business days of expiration or termination and certify in a writing to be delivered to Company within five (5) business days following such destruction or return that End User has fully complied with the requirements of this Section. Notwithstanding the foregoing, except in the case of Company’s termination of this Agreement for cause, or suspension of data delivery due to law, rule, or regulation, End User shall not be required to destroy mailing addresses or telephone numbers that Company appended to Company-provided records, provided that any continued use of such information will continue to be governed by the terms of this Agreement.

4. General Terms and Conditions. End User may use the Data provided pursuant to this Agreement, subject to the following:

4.1 Permitted Uses.

(a) The Data may be used for End User’s direct (i.e., offline) and/or online marketing programs to consumers in the United States. In all consumer marketing uses, the Data is to be used to determine a consumer’s interest in or likelihood to respond to an End User solicitation and not for exclusionary or discriminatory purposes.

(b) End User may provide End User’s file as enhanced with the Products to End User’s third party service bureau processor, mail house or marketing consultant (each a “Service Provider“) who are performing services for End User in connection with End User’s use of the Products; provided that prior to delivery of the Products to the Service Provider, End User shall have obtained the Service Provider’s written agreement in the form of a Third Party Processor Agreement to: (a) hold the Products in strict confidence; (b) use the Products only in connection with such services; (c) not translate the Products into another format or language, or decompile or reverse engineer the Products, and (d) not sell, rent or otherwise provide the Products to any third party. For the avoidance of doubt, Company or Data Owner shall have the right to reject the use of any particular Service Provider requested in the event that such Service Provider does not maintain sufficient security systems to protect the Data. Notwithstanding anything to the contrary in the foregoing, authorization to use a cloud storage environment shall be subject to compliance with the following: (i) Company will not allow any transfer of ownership rights in or to the Data in Company’s agreements with its cloud storage service provider; (ii) Company shall remain responsible for the control and security of the data in compliance with the security requirements set forth in the Agreement such that the Data shall be utilized only as authorized herein; and (iii) Company shall ensure that the selected cloud storage service provider maintains an information security program that has administrative, technical, and physical safeguards sufficient to protect the Data housed within the cloud environment in compliance with the Agreement. End User agrees that Acxiom or Company shall have the right to audit End User’s compliance with the foregoing requirements at any time upon ten (10) days prior written notice.

4.2 Requirements and Restrictions.

(a) When the Data is used in online marketing programs, the Data may be used as selection criteria for purposes of identifying the advertising target for marketing solicitations via online advertising campaigns; provided, however, all marketing communications shall: (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation; (ii) comply with all applicable laws, governmental rules and regulations; and (iii) comply with applicable privacy policies and, where applicable, the principles and/or best practices set forth within the following websites: Digital Advertising Alliance (http://www.aboutads.info/), Mobile Marketing Association, in particular its Best Practices Guide (http://www.mmaglobal.com or successor site), Federal Communication Commission (http://fcc.gov or successor site), and Interactive Advertising Bureau, in particular its Best Practices and its Self-Regulatory Guidelines and Behavioral Advertising Principles (http://www.iab.net or successor site). End User may use the Data to create, segment, or select a marketing-campaign audience (“Online Audience“) for an Online Targeting campaign. The Online Audience may be distributed directly to a publisher or distributed to a publisher through use of an onboarding service provider. Regardless of the distribution channel, only the selected Online Audience may be distributed to the publishers, and the Online Audience distributed by or on behalf of End User shall not contain: (i) any demographic elements sourced from the Data, other than name, address, telephone, or email address; or (ii) segment codes derived from the Data.

(b) Any email deployed by End User sourced from the Data will: (i) contain an opt-out provision, (ii) identify Company and provide a valid physical address, and (iii) clearly express the intent of the email communication. Reverse Phone Append, Reverse Email Append, and Email Append shall be limited to consumers with whom End User can reasonably demonstrate an existing business relationship (“Existing Customers”). Existing Customers do not include consumers who merely contacted End User. Any Existing Customer record submitted for email append must contain a full name and street address.

(c) The Products must reside and be used in an End User facility within the United States.

(d) End User may not sell, lease, rent or otherwise provide the Product to any third party, except as Service Provider as provided below.

(e) End User may not use the Data as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance or employment or credit repair services. The Products will not be used to advertise, sell, or exchange any illegal or illicit products or services, including, without limitation, pornography, illegal drugs, or illegal weapons. The Products may not be used in an individual look-up reference application.

(f) All marketing communications used in connection with any list created by or for End User derived from the Data shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient’s name and address; (ii) comply with all applicable federal and state laws, rules and regulations; (iii) comply with all applicable privacy policies as well as applicable self-regulatory guidelines, including the ANA Guidelines for Ethical Business Practice, published by the Data Marketing & Analytics (DMA) Division of the Association of National Advertisers (ANA) or any equivalent successor organization; and (iv) be in good taste in accordance with generally recognized standards of high integrity.

(g) End User shall furnish Company, if requested, two (2) copies of each mail piece, creative copy and/or telemarketing script using information derived from the Data.

(h) The Products will not be used: (i) for the benefit of a third party; (ii) in the development of any products or services to be provided to a third party; (iii) in the conduct of any marketing campaigns promoting a third party’s products or services; or (iv) in connection with any list enhancement or data appending projects performed for a third party.

(i) Acxiom is obligated to comply with certain restrictions and requirements placed upon the use of the Data by the Data Owners. End User shall strictly comply with all restrictions and requirements now or hereafter imposed upon Acxiom by any Data Owner and made known to Company in writing.

(j) End Use shall ensure secure inbound and outbound transmission of the Data via secure methods including both SFTP and PGP encryption.

(k) End User shall represent and warrant that, it has implemented and maintains an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any customer information at issue, sufficient to protect the Products. End User shall provide for logical and physical security of the Data with the same degree of care used to protect its own Confidential Information, but not less than reasonable security procedures and practices appropriate to the nature of the Data. Furthermore, End User will prevent loss, compromise, and misuse of the Data while in End User’s care, custody, or control. End User shall not grant access to the Data to individuals incarcerated in correctional institutions.

(l) Consumer Elections/Inquiries. In any use of the Products, End User must honor all consumer elections not to receive marketing solicitations from End User. End User is responsible for responding to any communication initiated by a consumer arising out of End User’s use of the Products. Upon receipt of an express request from a consumer for the source of the consumer’s personal information used in a marketing solicitation, End User may reference Acxiom as a source of such information, provided End User has verified Acxiom as the source. End User must promptly notify Acxiom of such request and provide Acxiom with a transcript or written description of the communication with the consumer. It is End User’s sole responsibility to ensure that the most current legally required suppression processing has been applied prior to marketing use of any Products provided to End User.

(m) Audit/Non-Compliance. End User agrees that at all times it shall maintain current, accurate and complete books and records relating to its usage of the Data in compliance with the terms of this Agreement. End User agrees that Company or Acxiom, or any designee of Company or Acxiom, shall have the right at any time to examine, inspect, audit, review and copy or make extracts from all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to End User at least five (5) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be strictly limited to those books and records which specifically relate to information pertinent to the use of the Data. In the event an audit reveals that End User is not in compliance with any of the terms and conditions of this Agreement, End User shall be responsible for the costs of the audit, as well as any and all damages resulting from such non-compliance including, without limitation, any special, incidental, indirect, or consequential damages whatsoever (including punitive damages and damages for loss of reputation or goodwill).

(n) Company reserves the right to review and pre-approve the End User’s intended use of the Data prior to Company’s acceptance of an order.

5. Indemnification. End User shall defend, indemnify, and hold harmless Company and the Data Owner from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys’ fees, arising out of or resulting from End User’s misuse or unauthorized use of the Data. Company shall provide End User prompt written notice of any claim of which it has knowledge, and shall provide End User with the assistance, information and authority necessary to perform End User’s obligations under this Section.

6. Warranty Disclaimer/Limitation of Liability. The Data provided to End User will be as complete, accurate, and current as it can be in view of industry standard methods of compilation of such data and the nature and accuracy of Acxiom’s sources for such data. Accordingly, the Data is provided on an “as is,” “as available” basis. Any use or reliance upon the Data by End User shall be at its own risk. EXCEPT AS SET FORTH IN THIS SECTION, NEITHER COMPANY NOR THE DATA OWNER MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER WITH RESPECT TO THE SERVICES, DATA, OR THE MEDIA ON WHICH THE DATA IS PROVIDED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY’S AND THE DATA OWNER’S AGGREGATE LIABILITY TO END USER, WHETHER FOR NEGLIGENCE, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE PRICE PAID FOR THE DATA OR SERVICES TO WHICH THE INCIDENT RELATES. IN NO EVENT SHALL COMPANY OR DATA OWNER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.

In addition to the general terms and conditions set forth in Section I above, the following terms and conditions set forth in this Section II are specific to the identified Products and shall only be required for inclusion in an End User Agreement when such End User client requests the applicable Product from Client:

1. Consumer List Data. Consumer List Data may be licensed for either one-time, two-time or multiple use within a one-year term as specified by Company. The Consumer List Data is seeded to detect any unauthorized use or duplication thereof, and End User agrees not to remove seeds from its mailing lists. End User agrees to pay for the full multiple use charge for End User’s violation of the permitted uses specified herein or duplication of the Consumer List Data, which shall be in addition to any other remedies that Company and its Data Owners have available under this Agreement. The Consumer List Data shall be examined upon the delivery thereof and End User shall notify Acxiom in writing within thirty (30) days of delivery of any questions or problems. No information shall be accepted after thirty (30) days.

2. USPS National Change of Address. In the event that End User receives National Change of Address (NCOA) and Delivery Sequence File (DSF) (DSF includes Second Generation Delivery Sequence File (DSF²)) as part of the Data licensed pursuant to this Agreement, End User, End User agrees that the sole permitted use of these licensed services is to process address lists in the preparation of mail that will be submitted to the USPS for acceptance and delivery. In connection therewith, End User warrants that it is an entity located or operating within the United States and that it will only use mailing lists processed through the licensed Products for mailing to addresses located within the United States. Company and End User acknowledge and agree that: (a) Company and End User must each complete and execute a USPS Processing Acknowledgment Form prior to use of NCOA^Link and DSF², and (b) a minimum of 100 records per use is required by the USPS.

3. Restricted Telephone Number. In addition to the permitted uses and restrictions set forth herein, use by End User of the Restricted Telephone Number Data requires a valid exemption from requirement(s) to register pursuant to regulations of the Federal Trade Commission (FTC), Federal Communications Commission (FCC), and other applicable governing and/or regulating entities along with End User’s signature on a separate waiver form which shall be provided to End User by Company. End User’s execution of the waiver is required prior to completion of processing.

4. InfoBase Economic Assessments Data. The foregoing permitted uses and restrictions, the terms and conditions set forth below shall apply to End User’s license of the InfoBase Economic Assessments Data Products (hereinafter the “EA Data”). Without limitation of the foregoing, End User shall not use the EA Data for credit granting, credit monitoring, account review, accounts receivable management, insurance underwriting, employment, or any other “permissible purpose” as defined by the Fair Credit Reporting Act (15 U.S.C. Sec. 1681 et seq (FCRA)), Federal Trade Commission interpretations of the FCRA, and similar state statutes, for permitted uses set forth in the Gramm-Leach-Bliley Act,(15 U.S.C. § 6805, et seq), or applicable regulations or in a manner contrary to the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.).

4.1 End User may not use EA Data for online marketing campaigns. Use of EA Data is limited to offline (i.e., direct) marketing programs only.

4.2 End User will not in any direct mail solicitation, telephone solicitation, or survey refer to any selection criteria or any presumed knowledge about the recipient.

4.3 End User will use the EA Data in any manner to discontinue, cancel, or deprive any individual or group of individuals of an already existing right or benefit.

4.4 Mail Piece/Telemarketing Script Approval. End User agrees to use EA Data in compliance with applicable law, regulation, or industry guidelines, and shall comply with the published policies of relevant industry self-regulatory organizations, including, but not limited to, the Association of National Advertisers (ANA) and the Digital Advertising Alliance (DAA) Self-Regulatory Principles for Online Behavioral Advertising, both as applicable to the Products.

5. Email Prospect List. When End User requests the Email Prospect List Product, the following terms shall apply:

5.1 Source File. On a periodic basis and according to the scheduling requirements established herein, Company will provide Acxiom with a file consisting of: (i) Company’s Existing Customer records; or (ii) as applicable to the Email Prospect List Product ordered hereunder, Acxiom or Acxiom Service Provider (as defined herein) will create or receive a prospect file in response to Company’s prospect selection criteria. All files submitted for processing pursuant to this Agreement will be referred to herein as “Source Files“. All Source Files will: (a) contain U.S. consumer records only; (b) be in the layout specified by Acxiom and communicated to Company; and (c) be delivered to Acxiom via SFTP using the SFTP address, user name, password, and file naming convention provided to Company by Acxiom.

5.2 End User Suppression File. Where End User has ordered a Product that includes deployment or End User has ordered deployment services, End User will provide Company with a file of email addresses for consumers who have communicated to End User their election to opt-out of receiving any further email communications (“Pander File” or “Do Not Email Suppression File“). The Pander File must be delivered prior to the first campaign deployment and updates shall be provided by End User prior to each subsequent campaign deployment. End User shall be solely responsible for maintaining and providing Company with updates to the Pander File.

5.3 Campaign Submissions. All files for a campaign deployment will be submitted in accordance with the schedule mutually agreed to by the parties. In the absence of such a schedule or for any ad hoc deployment requests, End User must provide Company with 15 business days’ notice prior to delivery of the applicable file for such deployment.

5.4 Campaign Processing. The following will be conducted for each campaign deployment:

(a) Where End User has ordered a Product that includes deployment or End User has ordered deployment services, Company will match the Source File to the Pander File provided by End User using a 100% exact string match logic. All matching Source File records will be suppressed from the campaign deployment and will not be submitted for any subsequent deployment processing.

(b) The remaining Source File records will be submitted to the Company Service Provider for conducting of the email campaign deployment. The content of the campaign email (including the from field, header field, subject field, opt-out language and message/artwork) shall be provided by End User and shall comply with the following: (i) contain an opt-out provision; (ii) contain a valid, physical Address; (iii) identify End User; (iv) be in good taste in accordance with generally recognized standards of high integrity; (v) comply with the applicable privacy policy of End User or its affiliate; (vi) comply with applicable law with respect to communications of such nature; (vii) clearly express the intent of the e-mail communication; (viii) shall not be libelous, slanderous, fraudulent, false advertising or misrepresentative; and (ix) shall not infringe any copyright, trademark or other third-party right.

(c) Each recipient of a campaign email must have an opportunity to unsubscribe from future End User marketing emails using either a brand-specific dedicated unsubscribe page or sending an email to a valid email address. Either mechanism must remain valid for at least 30 days following deployment of the campaign email (“Opt-Out Period“).

(d) Each email address from the Source File to which a campaign email was deployed will be identified as one of the following: (i) “Undelivered Email” means an email that was “bounced” by the Internet Service Provider due to temporary or permanent failures; (ii) “Delivered Email” means a campaign email that was successfully delivered to an email address from the Source File; and (iii) “Unsubscribed Email” means a Delivered Email to a recipient that has opted out of future email marketing communications from End User during the Opt-Out Period.

5.5 Unsubscribed Email File. The Email Addresses within the Unsubscribed Email File will only be used by End User for suppression purposes. All Unsubscribed Emails will be compiled into weekly files (“Unsubscribe Files“) until the Opt-Out Period has expired. No other output shall be provided. End User will not use the Unsubscribe Files for any purpose other than suppressing a consumer from any further e-mail solicitations from End User. End User must honor any consumer’s election to opt-out from receiving e-mail marketing solicitations from End User, whether such request is provided through Company or received directly from the recipient of a campaign email. If End User fails to honor the opt-out election of any consumer, Company may terminate this Agreement immediately upon written notice.

5.6 Timing. Each deployment is estimated to require between five business days and seven business days from submission of the Source Files (subject to the pre-processing requirements set forth above), Pander File and creative required. There will be a separate project plan developed and approved for each campaign under this Agreement. Such project plans will contain at least email segmentation information, deployment dates and quantities.

5.7 Subcontractors. End User consents to Company’s use of subcontractors (“Company Service Providers“) for the purpose of performing the data append and/or Services described in this Agreement. Upon request, Company will disclose the identity of any such Company Service Provider performing Services pursuant to this Agreement. End User authorizes Company to disclose the Source File data to the Company Service Provider. Company shall be liable for Company Service Provider’s compliance with all applicable terms of the Agreement, including, but not limited to, the confidentiality provisions contained in the Agreement.

5.8 Email Plus. Where the End User has subscribed to the Email Plus service (“Email Plus“) (which consists of prospect ad campaigns through email, web display, mobile display, and social display simultaneously), Company’s Service Provider will onboard and distribute the selected audience for targeting via desktop, display, mobile, and social channels. All marketing communications used shall be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation and may not advertise, sell, or exchange any illegal or illicit products or services, including pornography, illegal drugs, or illegal weapons. End User agrees to comply with all applicable laws, rules and regulations, as well as applicable privacy policies, principles and/or best practices of the Digital Advertising Alliance.

5.9 Warranty. End User warrants that: (i) its provision of End User Data to Company and the Data Owner hereunder does not violate any laws, intellectual property rights of any third party, or End User’s published privacy policies or notice and disclosure statements under which a consumer’s data was collected; (ii) all consumer records submitted for processing are Existing Customers; (iii) End User shall not use any email data delivered from the product to send an email to any consumer who has submitted an opt-out or unsubscribe request to End User electing not to receive commercial email communications from End User or has otherwise requested End User not contact such consumer by email.

6. Suppression Product.

6.1 Suppression Product. The Suppression Product shall be used solely for suppression of consumers from End User’s marketing programs, and for no other purpose. “Suppression Product” means the suppression flags applied to End User’s file, or any list or report provided to End User as a result of Data Owner’s suppression processing. Data Owner shall perform all processing of End User’s files through the Suppression Product at Data Owner’s facilities. Due to the varying time frames that suppression files are released to the general public, Data Owner cannot guarantee that the names or telephone numbers of all consumers who have opted-out of receiving marketing solicitations have been flagged on the Suppression Product supplied to End User hereunder. Where End User has requested Bankruptcy/Deceased Suppression, and/or Bankruptcy Deceased Suppression plus Tax Liens & Judgments, Data Owner will not provide End User any information indicating whether a record dropped was a deceased individual, an individual with a history of bankruptcy, or an individual with a history of tax liens and judgments (“Reason Codes“). End User may receive summarized information derived from the processing of the Suppression Product in one of the following limited formats: (1) a summary report indicating only the number of records dropped and associated Reason Codes; or (2) a consolidated report without Reason Codes for individuals dropped (for example, grouped as deceased and bankruptcy, or deceased, bankruptcy and tax liens and judgments).

6.2 FTC Do Not Call Suppression. FTC Do-Not-Call (or “FTC DNC“) suppression data will be used solely to comply with the Federal Trade Commission (FTC) Telemarketing Sales Rule. End User must properly register with the FTC prior to receiving any FTC DNC suppression processing and provide Company proof of registration or exemption. FTC DNC suppressions are not applied to other Data Products received hereunder unless expressly requested in writing.

6.3 Wireless Phone Suppression. Wireless phone suppression (WPS) data uses data provided by the applicable WPS Data Provider. End User agrees that WPS services may be suspended or terminated if required by the WPS Data Provider. Where possible, Company will provide written notice prior to suspension or termination. To receive WPS, End User must have registered and entered into a separate agreement with the WPS Data Provider and provided Company with verification of such registration. WPS is not applied to other Data Products received hereunder unless expressly requested in writing.