Agreement.
This Agreement governs the provision of all Applied Post services (each,
a “Service”), including access to software applications, technology and tools
through a web-based hosted interface (“Platform”) and/or delivery of licensed
data, maps, reports, tools, technology and other materials (collectively,
“Licensed Materials”). Unless superseded by a separately executed agreement,
these terms apply to all Services provided to Licensee.
Updates and Enhancements. Applied Post will provide
Licensee with updates and enhancements to the Services as are generally made
available to other licensees during the term of license (“Term”). Applied Post
reserves the right, from time to time, to enhance, update or otherwise change
any Service, provided that such modifications do not materially degrade the
functionality of that Service.
Payment and Invoicing. Charges are invoiced and/or
payments will be made through the Platform, as agreed. Undisputed invoices,
including those for any applicable sales or use tax, are payable within 30
days. Applied Post reserves to right to suspend Services and invoice Licensee
for accrued interest (at 1.5% per month) if past due, undisputed amounts remain
unpaid 30 days following written notice.
License. Services, including Licensed Materials, are the exclusive property of Applied Post and/or its third-party licensors (“Licensors”). Applied Post grants to Licensee a non-exclusive, non-transferable license for the specified Term to use the Services internally and as further specified below, in support of Licensee’s marketing and promotional purposes in Canada. Licensee may enlist the services of a third-party processor to utilize the Services on Licensee’s sole behalf, provided that such third party has executed a Third-Party Processor Agreement with Applied Post. Notwithstanding the foregoing, a Third-Party Processor Agreement is not required for any dedicated third-party processor or consultant functioning as part of Licensee’s internal team (not acting on behalf of multiple clients, while representing a separate service provider); provided Licensee assumes responsibility and liability for such third party to the same extent as it assumes for its own employees.
Disclosure and Output. Licensee may share reporting
and analysis containing excerpts of aggregated (not individual or household)
data from the Licensed Materials (collectively, “Output”) with third parties
solely in support of Licensee’s efforts to market or promote its business,
products or services. Output disclosed to third parties may not be presented in
a misleading manner, must cite Applied Post and any sourced Licensor, and may
not remove or obscure any copyright, trademark or restrictive legend. No
portion of the Services may be used internally or disclosed externally in a
manner that is competitive with Applied Post services.
Use Restrictions. Except as expressly authorized in
this Agreement, Licensee will not:
(a)Copy or reproduce the Licensed Materials (except for
execution and backup purposes, or to generate Output, which may be reproduced
as needed), exceed the number of specified licensed users, or reverse engineer,
decompile, decode or attempt to re-identify an individual from any portion of
the Services.
(b)Distribute, resell, sub license or otherwise provide Licensed Materials or derivatives based on the Licensed Materials to any third party, or place the Licensed Materials or Output on any publicly accessible website, without Applied Post’ prior written consent.
(c)Use the Licensed Materials to prepare, verify or modify
any directory or mailing or marketing list which is owned by a third party or
distributed to third parties not acting on Licensee’s behalf, or to develop any
application or service for list enhancement or data appending.
Licensee Data. Licensee may submit to Applied Post
confidential and proprietary records that include personal data, such as names
and addresses, originating from the Canada only (“Licensee Data”). Such records
must be in encrypted, machine-readable format and exclude all sensitive data
elements, including protected health information, and any information not
specifically requested by Applied Post. Licensee grants to Applied Post a
limited, non-exclusive license, in Canada, to use Licensee Data for and on
behalf of Licensee, for the sole purpose of providing the Services.
Confidentiality.
(a)Either party (“Disclosing Party”) may provide the other
party (“Receiving Party”) confidential materials and information, including
Licensee Data, Licensed Materials, Output, and/or any financial, sales, or
business information, that are not (i) disclosed in public materials or in the
public domain through no action or disclosure by the Receiving Party; (ii)
lawfully obtained from a third party without any obligation of confidentiality;
(iii) lawfully known to the Receiving Party prior to disclosure by the other
party; or (iv) independently developed by the Receiving Party without reference
to the Disclosing Party’s information (collectively “Confidential
Information”).
(b)As between the parties, each party retains all ownership
to its Confidential Information. The Receiving Party will maintain the
confidentiality of and will not use or disclose such Confidential Information
to a third party, with the exception of disclosures to the Receiving Party’s
auditor or legal counsel and disclosures authorized by this Agreement, for
which the Receiving Party will be responsible for compliance by recipients with
applicable terms of confidentiality and use of such Confidential Information.
If compelled by law or regulation, the Receiving Party may disclose
Confidential Information to a court or regulatory authority following written
notice to the Disclosing Party and, to the extent possible, the opportunity to
obtain protective orders or evidentiary stipulations. The Receiving Party will
limit disclosures to the minimum necessary to comply with legal or regulatory
requirements or other authorized purpose. If required, Licensee’s name may be
disclosed to a Licensor for royalty reporting purposes only, subject to
obligations of confidentiality. Neither party may use the name, trademark or
logo of the other party in any advertising or promotional material without
prior written consent, except as part of a preferred vendor or customer list,
which is permissible by either party. Any unauthorized disclosure or
distribution of Confidential Information may cause irreparable harm and entitle
the Disclosing Party to injunctive relief.
(c)The Receiving Party has implemented and maintains an
information security program appropriate to its size and complexity, the nature
and scope of its activities, and the sensitivity of information received and
stored, containing appropriate administrative, physical, and technical
safeguards to protect the security, confidentiality and integrity of
Confidential Information, with measures designed to prevent unauthorized access
and disclosure. The Receiving Party will notify the Disclosing Party of any
unauthorized access to or unauthorized use or disclosure of the Disclosing
Party’s Confidential Information.
(d)The Receiving Party will destroy the Disclosing Party’s
Confidential Information within 30 days following the Term, or earlier, upon
request, with the exception that any backup media created by the Receiving
party and stored as part of its business continuity or disaster recovery plan,
which may include portions of Confidential Information, will be destroyed in
accordance with the Receiving party’s internal destruction policy.
Representations and Warranties. Each party represents
and warrants that (i) it has all rights necessary to enter into this Agreement;
(ii) its collection, provision and/or use of data and Services in connection
with this Agreement will comply with all applicable laws and regulations,
including privacy, data protection and telemarketing laws, self-regulatory
standards and generally accepted industry guidelines (“Applicable Laws”); and
(iii) its respective data (e.g., Licensee Data, Licensed Materials), services
and/or advertising content associated with the Services do not violate the
rights of third parties, including material that contains or constitutes intellectual
property infringement, false advertising, invasion of privacy or defamation.
THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE. Data may be
subject to transcription and transmission error and are provided on an “as
is,” “as available” basis.
Limitations. IN NO EVENT WILL APPLIED POST, LICENSEE OR ANY LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR DAMAGES DUE TO LOSS OF DATA OR PROFITS ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NEITHER PARTY WILL BE LIABLE FOR ANY CLAIM (WITH THE EXCEPTION OF A CLAIM FOR NONPAYMENT) BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, NOR FOR ANY CLAIM (UNLESS SUBJECT TO AN INDEMNITY OBLIGATION) IN EXCESS OF AMOUNTS PAID DURING THE PRECEDING TWELVE MONTHS (“ANNUAL SPEND”) IN CONNECTION WITH THE SERVICES GIVING RISE TO SUCH CLAIM. TOTAL LIABILITY FOR A CLAIM FOR WHICH A PARTY IS EXPRESSLY INDEMNIFIED WILL NOT EXCEED $250,000 OR THE ANNUAL SPEND, WHICHEVER IS GREATER.
Indemnification. Each party will indemnify the other and defend or settle at its own expense any claim by a third party arising from the party’s breach of its Use Restrictions, Representations & Warranties, and Confidentiality & Security obligations, or arising from its gross negligence or willful misconduct. The indemnified party must provide prompt notification and reasonable information and cooperation in defense of the claim, ceding control of the defense and settlement to the indemnifying party, including selection of reputable counsel; provided that the indemnifying party will keep the indemnified party reasonably informed and will not enter into any settlement that includes an admission of fault or liability by the indemnified party without such party’s approval.
Term and Termination. Each Service will remain in effect for the specified Term, except as set forth below. Licensee may terminate and receive a refund of fees paid for any Service that fails to conform to this Agreement or published specifications, if not repaired or
replaced with a conforming Service within 60 days following receipt of Licensee’s written notice of nonconformity. Either party may terminate a Service in the event of (a) a material breach by the other party (other than a Service nonconformity as specified above) which remains uncured after 30 days following written notice; (b) insolvency or a proceeding in bankruptcy against the other party; or (c) a change in applicable law or regulation that
materially limits or prevents the provision or use of a Service. Applied Post may also terminate a Service that is being discontinued or terminated for all licensees of that Service. Upon expiration or termination, Licensee will cease all use of the terminated Service. Output in Licensee’s possession may be retained internally for historical, comparative or archival purposes only. Any other Licensed Materials in Licensee’s possession must be purged and destroyed within 30 days. Upon request by Applied Post, Licensee will provide written verification of its compliance with this Section.
General Provisions
Governing Law. This Agreement is governed by the laws of the Province of British Columbia, without regard to its choice of law provisions.
Merger Modification. This Agreement constitutes the
entire agreement between the parties, with respect to the subject matter, and
merges and supersedes all prior proposals, discussions or other communications.
This Agreement may not be modified, except by written consent of the parties.
Assignment. This Agreement is for the benefit of and
binding on the parties and their successors and assigns. It may not be assigned
by either party without the prior written consent of the other, except that
either party may, upon written notice, assign its rights and obligations under
this Agreement to an affiliate pursuant to a corporate re-organization or to a
successor to its business; provided that (a) Licensee’s contemplated assignment
will not be to a direct competitor of Applied Post and (b) such assignment does
not expand the scope of, or change the terms or charges, of any license granted
Compliance. During the Term and 12 months thereafter, in the event Applied Post reasonably suspects a breach by Licensee, Applied Post may request, and Licensee will provide a written account (email acceptable) by a duly authorized executive or officer of Licensee, along with any reasonably requested documentation, verifying compliance with applicable terms, as may be appropriate.
Force Majeure. Neither party will be liable for any loss arising out of a delay or interruption in its performance due to any act of God, governmental authority, or public enemy, or due to war, terrorism, riot, flood, civil commotion, insurrection, severe weather conditions, or other cause beyond the reasonable control of that party.
Survival. Obligations concerning use restrictions,representations and warranties, confidentiality, liability, indemnification, payment and post-termination use, and destruction will survive termination.
Applied Post Segmentation: Licensee may use its knowledge of Applied Post segments for the purpose of activating online advertising campaigns through any authorized platform offering Applied Post segments as selection criteria; provided that Licensee may not (a) independently upload or onboard Applied Post segments into an ad serving platform without a digital license grant; (b) export Applied Post segments from any Applied Post platform, except as appended to individual consumer records or for coding its own consumer records pursuant to a Directory license; or (c) use segment assignments to (i) select geographies for online advertising, (ii) compile a directory or cross-reference file showing the unique one-for-one segment assignment for any geographic unit or household, or (iii) disclose a specific geography associated with a particular Applied Post segment (e.g., linking Postal Code to a specific segment), unless aggregated to include not less than 3 segments.
“If your non-identifiable data are used for research purposes, then the limitation of liability and indemnity clauses contained within the End User License Agreement/Terms of Service Agreement are waived with respect to any harms suffered or liabilities incurred as a result of any research activities”.
Updated May 12th 2022