Terms & Conditions of
"File" shall mean an electronic record containing data that pertains to a particular individual (the "Consumer"), which meets each of the requirements set forth in this agreement.
"Opt In Data" where permission has been actively given by a consumer to receive emails.
"Double Opt In Data" where the consumer must also confirm his/her permission usually by replying to a confirmation email.
Files provided by List Owner
List Managers Right to use Files
The initial term ("Initial Term") of the Agreement shall be sixty (60) days and shall commence of the Effective Date. Thereafter, the Agreement shall automatically renew for consecutive thirty (30) day periods unless otherwise terminated pursuant to the provisions of this agreement.
Either party may terminate this Agreement for any reason by providing not less than forty-eight (48) hours notice to the other party.
Upon termination of this Agreement, whether for breach or otherwise, the following shall occur
Each party hereto represents and warrants that it has all the necessary power and authority to enter into this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
Neither party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to payment obligations) as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition(s) to the other party.
Relationship of the Parties.
The Parties to the Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either party.
Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.
This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein. Neither party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by such party in any correspondence or other document, unless the party to be bound specifically agrees to such provision(s) in writing.
No change, amendment, or modification of any provision of the Agreement will be valid unless set forth in a written instrument signed by the Parties.
Successors & Assigns
List Owner shall not assign this Agreement and any rights or obligations hereunder without the express written approval of List Manager, which approval shall not be unreasonably withheld. Any transfer of control of substantially all of the assets or business of the List Owner to a third party by sale, merger, or otherwise shall be deemed to be an assignment for purposes of this section. List Manager may assign this agreement and its rights and obligations hereunder to a parent, sister, subsidiary or any other business entity that purchases or acquires all or any portion of List Manager's stock. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the permitted assigns of the parties hereto.
The captions and headings used in the Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Delaware for such purpose. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.
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