1. Lead Generation Services. Where set forth in the applicable Campaign Terms, Datalot agrees to generate and collect self-reported data records (each individual data record a "Lead") as provided by prospective customers (each, a "Consumer") to Datalot and its third party marketing partners. Datalot agrees to transfer to Purchaser those Leads that match Purchaser's criteria.
2. Call Transfer Services. Where set forth in the applicable Campaign Terms, Datalot and its third party marketing partners agree to generate requests ("Phone Call Requests") from Consumers to receive telephone calls from Purchaser (each such request, a "Call Transfer(s)", and together with the Leads, the "Deliverables"). Where a Consumer submits a Phone Call Request to Datalot, and is otherwise considered by Datalot to be a Valid Call Transfer (as defined below), Datalot agrees to promptly provide such Call Transfers to Purchaser, in the form of a telephone call, via Datalot's designated proprietary technological platform (the "Datalot Platform").
3. Payment. Upon Purchaser's acceptance of this Agreement (including the Master Agreement and Campaign Terms), Purchaser will pre-pay Datalot by credit card ("Purchaser Credit Card") the fees set forth in the applicable Campaign Terms ("Prepaid Allotment") for the number of Valid Leads and Valid Call Transfers, as the case may be (collectively, "Valid Deliverables"), requested by Purchaser. At any time following the deposit of the applicable Prepaid Allotment, Purchaser can request a withdrawal of Eligible Funds (defined below) from Purchaser's account. For purposes of the Agreement, "Eligible Funds" shall mean the Prepaid Allotment and other amounts actually deposited by Purchaser into Purchaser's account, less all amounts owed to Datalot as payment for Valid Deliverables. In order to request a withdrawal, Purchaser must contact Purchaser's account representative, who is identified on Datalot's platform interface. Where Purchaser has not made a purchase of Valid Deliverables using the Prepaid Allotment for a period of twelve (12) consecutive months, Datalot shall return the remainder of the Eligible Funds to Purchaser via a credit to the Purchaser Credit Card account, provided that the Purchaser Credit Card account remains valid, active and capable of receiving such a credit. ALL DETERMINATIONS WITH RESPECT TO THE AMOUNT OF ELIGIBLE FUNDS WILL BE MADE BY DATALOT, IN ITS SOLE AND ABSOLUTE DISCRETION, AND SUCH DETERMINATION SHALL BE FINAL AND BINDING IN ALL RESPECTS.
4. Valid Deliverables. As explained in Section 3 above, Valid Leads and Valid Call Transfers are collectively referred to as Valid Deliverables. A "Valid Lead" is an individual person that: (a) is not computer generated, through means such as by use of a robot, spider, computer script or other automated, artificial or fraudulent method designed to create the appearance of being a real live person; and (b) has submitted information that meets all of Purchaser's criteria as set forth in the Campaign Terms. A "Valid Call Transfer" is an individual person that: (i) is not a fraudulently concocted, created or generated Consumer; and (ii) has submitted a valid Phone Call Request (as defined above) that meets all of Purchaser's criteria as set forth in the Campaign Terms. Where Purchaser suspects that a Deliverable submitted by Datalot is not a Valid Deliverable, Purchaser must notify Datalot within seven (7) business days of receipt of such Deliverable. If Datalot receives such notice from Purchaser within such time period, the parties agree to investigate the subject Deliverable and seek to resolve the matter in good faith within ten (10) business days following Datalot's receipt of the notice. If the parties acting together in good faith determine that such Deliverable was a Valid Deliverable, then no further action shall be taken. If the investigation reveals that the Deliverable was not a Valid Deliverable, Datalot shall credit Purchaser's account for the amount of the subject Deliverable. Where the parties cannot agree on the validity of the Deliverable, Purchaser acknowledges and agrees that Datalot's good faith determination shall control in all respects. A Deliverable that is both accepted and paid for by Purchaser is an "Accepted Deliverable". A Deliverable that is not both accepted and paid for by Purchaser is an "Unaccepted Deliverable". All Unaccepted Deliverables shall be deemed the sole and exclusive property of Datalot and shall be treated by Purchaser as the Confidential Information (as defined below) of Datalot, subject to all the restrictions and limitations set forth in this Agreement. Purchaser acknowledges and agrees that it shall have no ownership interest in or right to access (including, without limitation, the right to possess and/or use) the data associated with Unaccepted Deliverables, and Datalot reserves any and all rights in and to the data not otherwise explicitly granted in this Agreement.
5. Ownership. Unless otherwise designated in the Campaign Terms, upon Purchaser's acceptance of and payment for a Deliverable (in accordance with the payment terms agreed to by the parties), Datalot shall grant to Purchaser joint ownership of the data associated with such Deliverable. For the avoidance of doubt, Purchaser understands, acknowledges and agrees that only at the point at which Purchaser accepts and pays for the Deliverable will Purchaser have joint ownership of the data associated with the deliverable.
6. Unaccepted Deliverables. Where Purchaser (i) does not accept a Deliverable(s), or (ii) attempts to charge back payment for a Deliverable(s), and/or (iii) where such Deliverable(s) is later determined not to be a Valid Deliverable(s), Purchaser understands, acknowledges and agrees that it shall have no rights in and to such Deliverable(s), and the subject Deliverable(s) shall automatically become Unaccepted Deliverables and be the sole and exclusive property of Datalot. Purchaser agrees that all rights not included in this license are expressly reserved by Datalot. Without limiting the generality of the Confidentiality obligations set forth in this Agreement, Purchaser agrees that it: (a) will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Deliverables to or with any third party; (b) will not use the information contained in the Unaccepted Deliverables on its own behalf or for its own benefit in any manner unless expressly authorized in writing by Datalot; (c) will not use the information contained in the Unaccepted Deliverables to create any interactive on-line, CD-ROM or other derivative products; (d) will not publicly display the information contained in the Unaccepted Deliverables on the Internet; (e) will notify Datalot as soon as it knows or has reason to of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Deliverables, and (f) provide reasonable assistance to Datalot in the investigation and prosecution of any such unauthorized use or disclosure, use or access.
7. Confidential Information. As used herein, "Confidential Information" shall mean: (a) either party's proprietary information, including but not limited to any plans, practices, strategies, forecasts and analyses or other information regarding a party's operations, technology, software, algorithms, business, finances, marketing, industry know-how, trade secrets, accounts, customers; (b) information marked or designated by either party as confidential; (c) information otherwise disclosed by either party in a manner consistent with its confidential nature; (d) the terms and conditions of the Agreement, including pricing information; (e) as to Datalot, the Unaccepted Deliverables, any and all information contained in the Unaccepted Deliverables, and all aspects of, and processes associated with, the Datalot Platform; and (f) both party's information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of services pursuant to the Agreement, one party may disclose Confidential Information ("Disclosing Party") to the other party ("Receiving Party"). Confidential Information shall not be used or disclosed, except in accordance with applicable law or the terms of this Agreement. Receiving Party agrees to refrain from disclosing such Confidential Information to any third party, unless (a) disclosure is necessary and permitted in connection with the Receiving Party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties, (b) disclosure is required by applicable law; provided, however, that the Receiving Party shall promptly give the Disclosing Party advance notice thereof so as to afford the Disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information, or (c) any disclosure is made with the prior written consent of the Disclosing Party. Receiving party acknowledges that Disclosing Party does not grant any license to keep or use the Confidential Information and that Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. Receiving Party acknowledges that the Confidential Information is provided "as is" and Disclosing Party makes no warranties or guarantees as to its accuracy or completeness. Confidential Information does not include information which Notwithstanding anything contained herein to the contrary, these confidentiality obligations do not apply where the Receiving Party can demonstrate with clear and objective evidence that the information: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully and lawfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (iv) is independently developed by the Receiving Party without reliance upon or reference to the Disclosing Party's Confidential Information. Upon termination of this Agreement, or otherwise on demand by Disclosing Party, Receiving Party agrees that it will promptly return the Confidential Information to Disclosing party or destroy it, as determined in Disclosing Party's sole discretion, un-copied and undistributed. Destruction of any Confidential Information shall be certified in writing within five (5) days of such request. Receiving Party acknowledges and agrees that monetary damages for breach or threatened breach of this provision are not easily capable of determination and may not be adequate relief, and that the Disclosing Party shall further be entitled to seek injunctive relief without the requirement to post bond, in addition to seeking any other legal and equitable remedies. This Section 7 shall survive any expiration or termination of the Agreement and remain in full force and effect for a period of three (3) years thereafter or until the subject Confidential Information is no longer protectable under New York State law, whichever is longer.
8. Max Bid Program.
A. Purchaser may participate in Datalot's Max Bid Program if Purchaser is a pre-pay client. This program allows Purchaser to raise or lower its bid per live call transfer, in Purchaser's discretion, when it wants and as often as it wants (subject to a minimum bid for each product, as determined by Datalot in its sole discretion). The "max bid" (or "maximum bid") is the maximum price Purchaser is willing to pay per live call transfer. The actual dollar amount billed to Purchaser by Datalot will be no more than the maximum bid entered by Purchaser at the time of the call transfer. Datalot will determine the final price of the call and its decision will be final and binding.
B. The Max Bid Program is available to Purchaser only if it is a pre-pay client. Purchaser will pay all charges in connection with the program in accordance with the provisions, terms and conditios of the Agreement.
C. Purchaser understands, acknowledges and agrees that Datalot makes no representations, warranties, guarantees or promises that Purchaser's maximum bid will be accepted, accurately recorded, accurately reflected in the Platform and/or will result in the purchase of a call.
D. If Purchaser has requested that a Datalot representative change the maximum bid price on its behalf (whether electronically, verbally, in writing or otherwise), Purchaser understands, acknowledges and agrees that Datalot makes no representations, warranties, guarantees or promises that the representative will accurately take the order for the maximum bid price and/or enter it into the Platform in a timely manner and/or enter it into the Platform properly. Purchaser assumes any and all risk associated with having a Datalot representative take and enter Purchaser's bid order on its behalf.
E. If Purchaser has increased its maximum bid price for live calls, the higher bid price controls the purchase of every call purchased after the increase and will be the price charged by Datalot for such calls. In the event of a dispute over the applicable bid price, regardless of how the bid was placed (whether by Purchaser on the system directly, or by a Datalot representative on Purchaser's behalf after it requested such increase electronically, verbally, in writing or otherwise), Datalot's decision shall control and be final and binding in all respects.
F. Datalot may cancel the Max Bid Program and/or suspend or terminate Purchaser's participation in it for any reason at any time, in Datalot's sole discretion. If Purchaser is no longer a pre-pay client, it automatically will be terminated from the Max Bid Program.
9. Warranties. Purchaser represents and warrants to Datalot that: (a) Purchaser has full power and authority to enter into the Agreement; (b) the use of Deliverables provided to Purchaser will not violate any law, statute rule or other governmental regulation; (c) Purchaser has obtained, and shall maintain at all times during the term of the Agreement, all necessary permits and licenses required by all applicable state and federal governmental bodies in order to perform and/or offer its or any third party's products and/or services in any and all jurisdictions applicable to Purchaser; (d) Purchaser shall only offer its insurance-related products and/or services to the Accepted Deliverables ("Purchaser Services"); and (e) Purchaser's marketing attempts, as well as Purchaser Services, will at all times fully comply with all applicable state and federal laws, rules and/or regulations including, but not limited to, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule ("ATSR"), 16 CFR 310 et seq., and those state and federal laws, rules and regulations governing the NDNCR, telemarketing and deceptive trade practices, and all state and federal laws, rules and regulations promulgated under any of the foregoing (collectively, "Applicable Laws"). Datalot represents and warrants to Purchaser that: (i) Datalot has full power and authority to enter into the Agreement; (ii) the execution, delivery and performance by Datalot of its obligations under this Agreement will not violate any law, statute or other governmental regulation by which it is bound; and (iii) Datalot's Deliverable generation activities will at all times fully comply with all Applicable Laws.
10. Audit. Purchaser agrees that Datalot, or any designee of Datalot that is legally bound by obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement and for three (3) months thereafter to reasonably examine, inspect, audit and review (collectively, "Audit") Purchaser's books, records and any source documents used in the preparation thereof, as same relate to unauthorized use of the Unaccepted Deliverables generated hereunder. Such Audit shall be conducted during normal business hours and upon seven (7) days' prior written notice to Purchaser. Such Audit shall be at Datalot's sole cost and expense and be limited to those books and records that Datalot reasonably believes relate to unauthorized use of the Unaccepted Deliverables. Where Purchaser has used the Unaccepted Deliverables or any information contained therein or associated therewith, Purchaser shall immediately remit payment for such Unaccepted Deliverables, plus applicable interest, in accordance with the payment terms set forth herein, and the Purchase shall reimburse Datalot for the full costs and expenses associated with conducting the Audit.
A. By Purchaser. Purchaser agrees to indemnify, defend and hold harmless Datalot, its parents, affiliates and subsidiaries, and each of their respective members, owners, officers, partners, directors, shareholders, employees and authorized representatives and agents, from and against any and all liability, claim, loss, damage, demand, judgment, verdict, proceeding, action, lawsuit, investigation and/or expense of any kind or nature (including reasonable attorneys' fees and litigation costs) (collectively, "Claim(s)"") asserted by any third party due to, arising from, or in connection with: (a) any breach by Purchaser of the Agreement, including, without limitation, any provision, obligation, representation or warranty contained herein; (b) any Claim related to the Purchaser's Services and/or products; and (c) any Claim related to Purchaser's marketing activities; and (d) any Claim related to the use of the Deliverables.
B. By Datalot. Datalot agrees to indemnify, defend and hold harmless Purchaser, its parents and subsidiaries, and each of their respective members, owners, officers, partners, directors, shareholders, employees and authorized representatives and agents, from and against any and all Claims asserted by any third party due to, arising from, or in connection with any breach by Datalot of the Agreement including, without limitation, any provision, obligations, representation or warranty contained herein.
C. Procedure. If any Claim is or will be brought against either Party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other Party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim; provided, however, that the Indemnifying Party will not agree to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party, which will not be unreasonably withheld or delayed.
A. Term. The initial term of the Agreement shall be one (1) year and shall commence on the date indicated in the Campaign Terms ("Initial Term"). Thereafter, the Agreement shall automatically renew on an annual basis for one (1) year terms (each, a "Renewal Term"), unless otherwise terminated pursuant to the provisions set forth hereinbelow (the Initial Term and any subsequent Renewal Terms shall be collectively referred to as the "Term"). Notwithstanding anything herein to the contrary, either party may terminate the Agreement at any time upon seventy-two (72) hours' prior written notice to the other party.
B. Termination. In addition to the above, this Agreement may be terminated at any time by either Party, effective immediately upon written notice, if a Party: (i) files a voluntary petition in bankruptcy or makes an assignment for the benefit of creditors; or (ii) breaches any of the material terms of this Agreement if such material breach is not remedied within five (5) business days from the receipt of written notice of such material breach; or (iii) as to Datalot, in its sole discretion, if Purchaser fails to pay all invoices in accordance with the terms of the applicable Campaign Term(s) or Purchaser's credit is or becomes unsatisfactory, for whatever reason, to Datalot. Upon termination or expiration of this Agreement for any reason, Purchaser will pay Datalot all amounts then due and owing as of the termination date, with such payment to be made during the next billing cycle. Payments that are past due shall accrue interest at the lesser of one and one-half percent (1.5%) per month, or the maximum rate permitted by law.
13. DISCLAIMER OF WARRANTIES. THE SERVICES AND DELIVERABLES PROVIDED BY DATALOT UNDER THE AGREEMENT ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, DATALOT DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, PERFORMANCE, LEVEL OF SUCCESS WITH RESPECT TO ANY CAMPAIGN, AND ANY OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DATALOT DOES NOT WARRANTY, PROMISE, REPRESENT OR GUARANTEE THE VOLUME OR FREQUENCY OF DELIVERABLES OR RESPONSE RATES. DATALOT'S SERVICES, INCLUDING BUT NOT LIMITED TO THE DELIVERABLES, MAY CONTAIN BUGS, TECHNICAL OR OPERATIONAL PROBLEMS AND/OR OTHER LIMITATIONS ADVERSELY IMPACTING DATALOT'S ABILITY TO MAKE DELIVERABLES, PURCHASER'S ABILITY TO ACCEPT DELIVERABLES AND/OR THE QUALITY AND/OR USEFULNESS OF THE DELIVERABLES. DATALOT DOES NOT WARRANTY, PROMISE, REPRESENT OR GUARANTEE THAT PURCHASER'S USE OF THE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PURCHASER WILL BE ABLE TO USE DELIVERABLES. DATALOT EXPRESSLY DISCLAIMS RESPONSIBILITY FOR THE OPERATION OF AND/OR DAMAGE TO PURCHASER'S AND/OR ANY THIRD-PARTY(S)'' DATA SECURITY SYSTEMS AND/OR PRIVACY PROTECTION PROCEDURES ARISING FROM ANY DELIVERABLES OR UNACCEPTED DELIVERABLES, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, ASSOCIATED WITH SAME.IF PURCHASER HAS REQUESTED THAT A DATALOT REPRESENTATIVE CHANGE ON ITS BEHALF A CALL BID PRICE UNDER ANY PROGRAM OFFERED BY DATALOT, ANY CALL FILTER CRITERIA AND/OR ANY OTHER ELEMENT RELATING TO PURCHASER'S ACCOUNT (COLLECTIVELY, "MODIFICATION(S)") (WHETHER ELECTRONICALLY, VERBALLY, IN WRITING OR OTHERWISE), PURCHASER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT DATALOT MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES OR PROMISES THAT THE REPRESENTATIVE WILL ACCURATELY RECORD THE MODIFICATION(S) AND/OR ENTER SUCH MODIFICATION(S) INTO THE PLATFORM PROPERLY AND/OR ENTER THE MODIFICATION(S) INTO THE PLATFORM IN A TIMELY MANNER. PURCHASER ASSUMES ANY AND ALL RISK ASSOCIATED WITH HAVING A DATALOT MAKE ANY MODIFICATION TO PURCHASER'S ACCOUNT.
PURCHASER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT IS WITHIN DATALOT'S SOLE DISCRETION AS TO HOW IT DIRECTS ITS DELIVERABLES AND WHETHER OR NOT TO ACCEPT A BID PLACED BY PURCHASER FOR A DELIVERABLE. PURCHASER'S PLACEMENT OF BIDS FOR DELIVERABLES DOES NOT IN ANY WAY BIND DATALOT TO ACCEPT SUCH BIDS. PURCHASER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT A BID TO PURCHASE A DELIVERABLE DOES NOT CONSTITUTE, OR BIND DATALOT TO, A FIRM SALE PRICE.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL DATALOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, LOST BUSINESS OR INFORMATION, IMPAIRMENT OF ASSETS, OR LOST GOOD WILL OR REPUTATION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY CAMPAIGN, HOWSOEVER CAUSED, WHETHER BASED IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF DATALOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, DATALOT'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO DATALOT BY PURCHASER PURSUANT TO THE AGREEMENT. DATALOT DISCLAIMS ANY AND ALL LIABILITY FOR, AND SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR, THE ACTIONS OR INACTIONS OF ITS SUB-LICENSEES.
15. Non-Circumvention / Non-solicitation.
A. Non-circumvention. Purchaser recognizes that Datalot has proprietary relationships with the affiliates, advertisers and other third parties that purchase Deliverables ("Clients") from and/or market Deliverables ("Marketers" and together with the Clients, "Partners") to Datalot. During the term of this Agreement and for a period of six (6) months following termination or expiration hereof, Purchaser agrees not to circumvent Datalot's relationships with such Partners, or otherwise offer, make available, provide, obtain, purchase, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Purchaser hereunder for any Partner that is known, or should reasonably be known, by Purchaser to have such a relationship with Datalot,. Notwithstanding the foregoing, to the extent that Purchaser can establish by reasonable objective evidence that any such Partners already obtained such services from, or provided such services to, Purchaser prior to the Effective Date of this Agreement, then Purchaser shall not be prohibited from continuing such relationship(s). Purchaser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Datalot shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Purchaser in the amount equal to one hundred percent (100%) of the fees paid by Purchaser to, or received by Purchaser from, the subject Partner for the prior twelve (12) month period; and/or (c) any and all other remedies available to Datalot at law or in equity.
B. Non-solicitation. During the Term of this Agreement and for a period of twelve (12) months immediately following the date of termination hereof, Purchaser will not, directly or indirectly, for itself or for the benefit of any third-party, hire or solicit for employment or services, any employee, consultant or independent contractor of Datalot.
16. Force Majeure. Other than for payment obligations, neither party will be liable, or be considered to be in breach of the Agreement, on account of such party's delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party prompt notice of such Force Majeure Event and any resulting delay or inability to perform, and will use commercially reasonable efforts to minimize the impact of any such event.
17. Relationship of the Parties. The relationship of Datalot and Purchaser established by this Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint-venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party's behalf. Each party shall be solely responsible for the actions or inactions of its respective employees, agents, affiliates and representatives.
18. Jurisdiction/Venue. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York, without giving effect to its conflicts of law principles. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts of New York County, New York, in connection with any action arising under the Agreement. The parties agree that service by a major overnight courier (such as FedEx or UPS) shall constitute valid and effective service of process in any action arising under the Agreement.
19. Waiver. Except as otherwise specified herein, the rights and remedies granted to a party under this 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. Failure of a party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. No delay or failure by either party to exercise any right, power or option under this Agreement, and no partial or single exercise of that right, power or option, shall constitute a waiver of that or any other right, power or option, unless otherwise expressly provided herein. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. No waiver of any right shall be effective against a party unless in writing and executed by the waiving party. A waiver of default shall not be a waiver of any other or subsequent default.
20. Entire Agreement; Modifications. This Agreement, together with any applicable Campaign Terms, contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior written, electronic or oral agreements and understandings between the Parties. No modification change or amendment of this Agreement or any Campaign Terms shall be valid, effective or legally enforceable against Datalot unless in writing and executed by a duly authorized representative of Datalot. Amendment.
21. Severability. If any provision contained in the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real original intention of the parties, and the remaining provisions of the Agreement will remain valid, binding and in full force and effect. Any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
22. Assignment. Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition, joint venture or sale of all or substantially all of such party's assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. Subject to the foregoing, the provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
23. Electronic Signatures. Purchaser acknowledges and agrees that by clicking on the Submit button, or taking such other action as may be designated by Datalot as a means of accepting the Agreement, Purchaser is submitting a legally binding electronic signature and is entering into a legally binding contract. Purchaser acknowledges that Purchaser's electronic submission constitutes Purchaser's agreement and intent to be bound by the Agreement. PURSUANT TO ANY AND ALL APPLICABLE STATUTES, REGULATIONS, RULES, ORDINANCES OR OTHER LAWS INCLUDING, WITHOUT LIMITATION, THE UNITED STATES ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, P.L. 106-229 (THE "E-SIGN ACT") AND/OR OTHER SIMILAR STATUTES, PURCHASER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY DATALOT. Further, Purchaser hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
24. Survival. All provisions of this Agreement that by their nature and/or content are intended to survive completion, termination or expiration hereof shall so survive.
25. No Third Party Rights. Except as may be expressly provided herein, nothing in this Agreement shall be enforceable by any party other than the parties hereto, and no third party beneficiary rights are conferred on any third party.
26. Section Headings. The titles to the paragraphs in this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of said covenants or provisions set forth therein.
27. Counterparts. This Agreement and any Campaign Term(s) may be executed (electronically or otherwise) in any number of counterparts and all of which shall together constitute one and the same instrument.
28. No Reliance; Interpretation. Purchaser acknowledges and agrees that it (i) has had the opportunity to seek the advice of legal counsel of its choice, (ii) has read and understands all of the terms and conditions of this Agreement, and (iii) acknowledges that it has not relied on any representation by Datalot in executing this Agreement, except as may be expressly stated herein. The parties stipulate that the rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.