Thank you for accessing Datalot's proprietary online application ("Platform"), either in demo mode or as a registered user of the Services (as defined below). The Platform is the sole and exclusive property of Datalot, Inc. ("Datalot," "we", "us" or "our"). This End-User License Agreement ("EULA") governs your access to and use of the Platform, Services and associated Reports (as defined below).
YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA WHEN YOU: (A) ACCESS AND/OR USE THE PLATFORM AS A DEMO, AND AT ALL TIMES THEREAFTER; AND/OR (B) REGISTER VIA THE PLATFORM TO RECEIVE CERTAIN LEAD GENERATION AND/OR CALL TRANSFER SERVICES PERFORMED BY DATALOT ("SERVICES") PURSUANT TO THE TERMS OF THE DATALOT MASTER LEAD SALES AND CALL TRANSFER AGREEMENT ("MASTER TRANSFER AGREEMENT"). THIS EULA SHALL BE DEEMED FULLY INCORPORATED INTO, AND GOVERNED BY, THE MASTER TRANSFER AGREEMENT.
THIS EULA CONSTITUTES A VALID, ELECTRONIC AGREEMENT ENFORCEABLE AGAINST YOU IN CONNECTION WITH YOUR USE OF THE SERVICES, PLATFORM AND REPORTS, AND INCORPORATES IN THEIR ENTIRETY THE FOLLOWING: (1) THE WEBSITE PRIVACY POLICY; AND (2) THE WEBSITE TERMS AND CONDITIONS OF USE; AND (3) ALL WEBSITE DISCLAIMERS, AS IF EACH WERE SET FORTH HEREIN.
IF YOU DO NOT AGREE TO THIS EULA IN ITS ENTIRETY, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE PLATFORM AT ANY TIME, IN ANY MANNER OR FORM WHATSOEVER.
YOU ARE NOT PERMITTED AT ANY TIME TO MODIFY THE TERMS AND CONDITIONS OF THIS EULA. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CHANGE, UPDATE, AMEND, SUPPLEMENT OR OTHERWISE MODIFY (COLLECTIVELY, "CHANGE(S)") THE TERMS AND CONDITIONS OF THIS EULA AT ANY TIME FOR ANY REASON. YOU SHOULD CHECK THIS WEBSITE REGULARLY TO DETERMINE IF ANY CHANGES HAVE BEEN MADE TO THIS EULA. YOU AGREE THAT YOUR CONTINUED USE OF ANY PART OF THE SERVICES, THE PLATFORM AND/OR REPORTS FOLLOWING THE POSTING OF ANY CHANGES TO THE TERMS AND CONDITIONS OF THIS EULA (INCLUDING ALL WEBSITE POLICIES AND DISCLAIMERS INCORPORATED HEREIN) AUTOMATICALLY INDICATES YOUR ACCEPTANCE OF THOSE CHANGES, EVEN IF YOU HAVE NOT REVIEWED THE EULA ON THE DATE(S) OF USE.
For purposes of this EULA, any reference to "you," "user" or "your" refers to you, the user of the Platform, and any employee, representative, agent and any other third party that gains access to the Platform by or through your account, with or without your knowledge and/or authorization.
1. User Requirements. The Platform is available only to individuals that: (a) are at least eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age); (b) can enter into legally binding contracts under applicable law; and (c) have received an invitation directly from Datalot ("Initial Requirements"). The Services and Reports are available only to individuals that meet the Initial Requirements and have entered into a Master Transfer Agreement with Datalot, and such Master Transfer Agreement has not expired or been terminated. If you do not meet all of the aforementioned requirements, you do not have permission to access and/or use the Platform, Services and/or Reports, as applicable.
2. Platform. For purposes of this EULA, the term "Platform" means any and all Datalot software applications, files, technology, algorithms, source code, hardware, associated media and electronic documentation that have been or may be used in connection with the software and/or applications made available through and/or accessible via Datalot's proprietary, interactive website interface. The Platform includes an online interface where you may access charts, data and reports generated by Datalot associated with the Services (collectively, "Reports").
In connection with your use of the Platform, you may be able to use various tools to manipulate and reconfigure the data in the Reports. Though not obligated to do so at any time, Datalot reserves the right from time to time, in its sole discretion, to add or make Changes to the existing features and/or functions of the existing Platform. Additionally, though not obligated to do so at any time, Datalot also reserves the right, in its sole discretion, to provide bug fixes, error corrections, patches, new releases and/or other component(s), tool(s), function(s) and/or feature(s) (collectively, "Platform Features") not specifically addressed in this EULA. The terms governing Changes to the existing features and/or functions of the Platform and/or the use of such Platform Features shall be those set forth in this EULA.
You understand and acknowledge that: (a) any such Changes to this EULA and/or Platform Features may adversely impact your ability to use the Platform and/or access charts, data and/or reports; (b) Datalot requires you to review and accept the then-current EULA before you will be permitted to use any new or different version(s) of the Platform; (c) Datalot has no obligation to make any new or different version(s) of the Platform available to you.
You understand and acknowledge that you are responsible for obtaining and maintaining all telephone and computer hardware and any and all other equipment needed for access to, and use of, the Platform, Services and/or Reports.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT DATALOT SHALL NOT BE ABLE TO REVIEW, CAPTURE AND/OR MONITOR ALL INFORMATION ASSOCIATED WITH THE PLATFORM, SERVICES AND/OR REPORTS AND THAT YOU ASSUME ALL RISK ASSOCIATED WITH YOUR USE OF THE PLATFORM, SERVICES AND/OR REPORTS.
3. Reports. You may only use the Reports for your internal business purposes. You agree to use the Reports and all associated data, charts and information in accordance with this EULA and any and all applicable federal, state, provincial and local laws, statutes, rules, regulations and judicial decrees. You are solely responsible for, and assume all risk and liability associated with, your use of the Reports.
4. Platform License Grant. Upon the terms and conditions contained herein, Datalot hereby grants to you, and you hereby accept from Datalot, a non-exclusive, non-transferable, non-sublicenseable, non-assignable, revocable, limited license for your own internal business purposes only to use the Platform during the term of the active Master Transfer Agreement. You are permitted to grant access to the Platform to up to ten (10) of your employees, all of whom shall be required to comply with this EULA; provided, however, that you shall: (a) ensure, and be able to establish with objective proof if requested, that such employees are bound by confidentiality and intellectual property provisions at least as stringent as those set forth in this EULA and the Master Transfer Agreement; and (b) be responsible for all acts and omissions of such employees in connection with the access and use of the Platform. Datalot may, in its sole discretion, permit you to have more than 10 employees access and use the Platform; provided, however, that (i) you first obtain written consent from Datalot and (ii) ensure that all such additional employees comply with this EULA in the same manner as the first 10 employees.
You understand, acknowledge and agree to immediately notify Datalot of any known or suspected unauthorized use of your account or any other breach of security known to or suspected by you. Notwithstanding your provision of notice to Datalot, pursuant to Section 6(b) below, you are liable for any damages associated with the unauthorized access and use of your account and the Platform and/or Reports.
If you register to access and use the Platform and/or Reports, you agree to: (a) provide true, accurate, current and complete registration information as prompted by the registration form (collectively, "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it accurate, current and complete. In addition to and without limiting in any way Datalot's general right to terminate your access and use of the Platform and Reports as provided in this EULA, if you provide any information Datalot believes, in its sole discretion, to be untrue, inaccurate, not current, incomplete, misleading or designed to deceive, or if Datalot, in its sole discretion, believes it has a basis to suspect that such is the case, Datalot has the right to immediately suspend or terminate your account, either with or without notice to you, and refuse to grant any and all current or future access and use of the Platform and Reports (or any portion thereof) and/or any benefit to which you may be entitled through your access and use of the Platform and Reports.
The limited license grant detailed in this Section 4 will terminate immediately and automatically: (A) upon the termination or expiration of the Master Transfer Agreement; and/or (B) where you or any of your employees materially breach this EULA or the Master Transfer Agreement; and/or (C) where any third party gains access to and/or uses the Platform by or through your account, with or without your knowledge and/or authorization.
YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT NEITHER YOU NOR ANY EMPLOYEE GRANTED ACCESS TO, AND USE OF, THE PLATFORM WILL COMMERCIALIZE, OR ENGAGE IN THE COMMERCIALIZATION OF, DATALOT'S PLATFORM, INFORMATION TECHNOLOGY AND/OR ONLINE PRODUCTS AND SERVICES.
5. Ownership and Intellectual Property Rights.
(a) You acknowledge that the Platform and Reports and other products and services are the property of the Datalot and/or its licensors, and are protected by U.S. copyright, trademark, patent and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, any rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary or other rights recognized in any country or jurisdiction worldwide, including without limitation, moral or similar rights. All rights not expressly granted hereunder are expressly reserved to Datalot and Datalot's licensors.
(b) Without limiting the generality of the foregoing, and subject to the restrictions contained in this EULA and the Master Transfer Agreement: (i) the Reports shall be jointly owned by you and Datalot; and (ii) Datalot hereby irrevocably assigns, transfers and conveys to you, without further consideration, the right to use such Reports for your internal business purposes only. Notwithstanding the foregoing, Datalot does not grant you any ownership interest in or right or title to the Platform or any Intellectual Property used or contained therein. This prohibition includes, but is not limited to, the: (A) use of any trademarks, service marks or logos of Datalot that are included in such Reports; (B) use of any patent, algorithm, software, source code or other underlying proprietary technology used in the generation of the Reports; and (C) the design, layout or configuration of such Reports ("Appearance"). The Reports shall revert to Datalot's sole and exclusive property if you breach this EULA and/or the Master Transfer Agreement. Notwithstanding anything to the contrary in this EULA, if you are part of a Carrier Sponsored Program, then: (i) the applicable Carrier will also be entitled to joint ownership of all Reports; and (ii) Datalot shall be permitted to disclose the Reports, any data regarding your usage of the Platform, and any other relevant information related to this EULA or your relationship with Datalot, as may be requested by the Carrier from time to time. A “Carrier Sponsored Program” is a program whereby a company on whose behalf you sell, market or promote products or services (such company, a “Carrier”) will make funds available to you in order to pay for all or a portion of the services or information you receive from Datalot.
(c) The Platform is protected by United States Copyright law and international copyright treaties, as well as other intellectual property laws and treaties. The Platform is proprietary to Datalot (and/or its third party licensors, suppliers, resellers and partners). All right, title and interest in and to the proprietary technology associated with the Platform (including associated intellectual property rights) is and will remain at all times vested in Datalot and/or its third party licensors, suppliers, resellers and partners. You understand, acknowledge and agree that no right, license or interest in or to any trademarks, service marks, trade names or any other intellectual, property, moral or other rights of Datalot and/or its third party licensors, suppliers, resellers and partners is granted hereunder. All rights not expressly granted hereunder are expressly reserved to Datalot and Datalot's licensors, suppliers, resellers and partners.
6. LICENSE/USAGE RESTRICTIONS/INDEMNIFICATION.
(a) THE PLATFORM AND REPORTS ARE LICENSED ONLY TO YOU, THE APPROVED USER WHO HAS BEEN GRANTED ACCESS TO THE PLATFORM AND REPORTS BY DATALOT. THEY HAVE NOT BEEN SOLD TO YOU OR ANYONE ACTING BY OR THROUGH YOU. EXCEPT AS EXPRESSLY PERMITTED BY THIS EULA, YOU ARE NOT PERMITTED TO SUBLICENSE, ASSIGN, RESELL, SHARE, PLEDGE, RENT OR TRANSFER ANY OF YOUR RIGHTS TO ACCESS AND/OR USE THE PLATFORM, REPORTS OR ANY PORTION THEREOF. EXCEPT AS EXPRESSLY PERMITTED BY THIS EULA, NO COPYING, REDISTRIBUTING, DISPLAYING, PERFORMING, REPRODUCING, LICENSING, TRANSFERRING AND/OR PUBLISHING OF THE PLATFORM, REPORTS OR ANY PORTION THEREOF IS PERMITTED WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF DATALOT, WHICH CONSENT SHALL BE WITHIN DATALOT'S SOLE AND ABSOLUTE DISCRETION. EXCEPT AS EXPRESSLY PERMITTED BY THIS EULA, YOU MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE AND/OR CREATE DERIVATIVE WORKS OF THE PLATFORM AND/OR REPORTS OR OTHERWISE ATTEMPT TO: (A) DEFEAT, AVOID, BYPASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY SOFTWARE PROTECTION MECHANISM(S) IN THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY MECHANISM(S) USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE PLATFORM; OR (B) DERIVE THE SOURCE CODE OR THE UNDERLYING SOFTWARE, IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATIONAL FORM OF THE PLATFORM AND/OR REPORTS. YOU WILL AT ALL TIMES, INCLUDING DURING AND AFTER THE TERM OF THE MASTER TRANSFER AGREEMENT, ADHERE TO THE CONFIDENTIALITY TERMS OF THIS EULA AND SUCH AGREEMENT(S), AND KEEP THE PLATFORM AND ANY AND ALL ASSOCIATED INFORMATION CONFIDENTIAL.
(b) YOU AGREE TO INDEMNIFY, DEFEND AND HOLD DATALOT, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS RESELLERS, PARTNERS, AND THIRD PARTY SUPPLIERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, MEMBERS, OWNERS, INVESTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, ACTIONS, LAWSUITS, JUDGMENTS, VERDICTS, PROCEEDINGS, INVESTIGATIONS, INQUIRIES, LIENS, DAMAGES, LOSSES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, IN CONNECTION WITH, RELATING TO OR ARISING OUT OF (A) YOUR USE OF THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA (AS SUCH TERM IS DEFINED BELOW IN SECTION 11), (B) YOUR BREACH OF ANY OF THE TERMS AND/OR CONDITIONS OF THIS EULA, (C) YOUR BREACH OF THE MASTER TRANSFER AGREEMENT AND/OR SUCH OTHER AGREEMENT(S) BY WHICH DATALOT AND YOU ARE BOUND, (D) THE ACTIONS OR INACTIONS OF THE EMPLOYEES YOU AUTHORIZE TO USE THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA, (E) THE UNAUTHORIZED USE OF YOUR ACCOUNT BY ANY THIRD PARTY; AND (F) YOUR INFRINGEMENT OR THE INFRINGEMENT BY ANY OTHER USER THROUGH YOUR ACCOUNT OF ANY INTELLECTUAL, PROPRIETARY, PROPERTY AND/OR MORAL RIGHTS OF ANY PERSON OR ENTITY.
7. DISCLAIMER OF WARRANTIES. THE PLATFORM AND REPORTS AND CONSUMER LEAD DATA ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, PROMISE, INDUCEMENT OR CONDITION OF ANY KIND OR NATURE, EITHER EXPRESS OR IMPLIED. YOU ACCESS AND USE THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA AT YOUR OWN RISK. NEITHER DATALOT NOR ITS LICENSORS, SUPPLIERS, PARTNERS AND RESELLERS REPRESENT, WARRANT, GUARANTEE OR PROMISE THAT (I) THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA WILL MEET YOUR REQUIREMENTS OR NEEDS, OR (II) THE OPERATION OF THE PLATFORM AND/OR REPORTS AND/OR THE CONSUMER LEAD DATA WILL BE UNINTERRRUPTED, ERROR FREE, SECURE, ACCURATE, RELIABLE, ACCESSIBLE, AVAILABLE, COMPLETE OR CURRENT, OR (III) THAT ANY INACCESSIBLITY, ERRORS OR DEFECTS RELATED TO THE ACCESS AND/OR USE OF THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA WILL BE CORRECTED. WITHOUT LIMITATION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THIS DISCLAIMER OF WARRANTIES EXTENDS TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ANY LEVEL OF SUCCESS, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND TO ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, EQUITY AND/OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
IF YOU HAVE REQUESTED THAT A DATALOT REPRESENTATIVE CHANGE ON YOUR BEHALF A CALL BID PRICE UNDER ANY PROGRAM OFFERED BY DATALOT, ANY CALL FILTER CRITERIA AND/OR ANY OTHER ELEMENT RELATING TO YOUR CLIENT ACCOUNT OR YOUR PARTICIPATION IN A DATALOT PROGRAM (COLLECTIVELY, "MODIFICATION(S)") (WHETHER ELECTRONICALLY, VERBALLY, IN WRITING OR OTHERWISE), YOU UNDERSTAND, ACKNOWLEDGE AND AGREE 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. YOU ASSUME ANY AND ALL RISK ASSOCIATED WITH HAVING A DATALOT MAKE ANY MODIFICATION TO YOUR ACCOUNT.
IF YOU HAVE CHOSEN TO PARTICIPATE IN THE “BILL ON NO ANSWER PROGRAM” (SEE SECTION 11) THROUGH WHICH YOU REQUEST THAT DATALOT SEND YOU CONSUMER LEAD DATA WHEN YOU ARE UNAVAILABLE TO ACCEPT LIVE CALL TRANSFERS, SO THAT YOU COULD OUTBOUND CALL THOSE CONSUMERS ON YOUR OWN ACCORD, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT DATALOT MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES, INDUCEMENTS OR PROMISES THAT THE REPRESENTATIVE WILL ACCURATELY RECORD THE CONSUMER LEAD DATA, EMAIL YOU THE CONSUMER LEAD DATA IN A TIMELY OR APPROPRIATE MANNER, ENSURE THAT ALL NECESSARY CONSUMER LEAD DATA WILL BE PROPERLY TRANSFERRED TO YOU, AND/OR ENSURE THAT PROPER CONSENT HAS BEEN OBTAINED FOR YOU TO OUTBOUND CALL THE CONSUMER BASED ON THE CONSUMER LEAD DATA. YOU ASSUME ANY AND ALL RISK ASSOCIATED WITH HAVING DATALOT COLLECT AND SEND YOU CONSUMER LEAD DATA PURSUANT TO, AND YOUR PARTICIPATION IN, THE “BILL ON NO ANSWER PROGRAM”, AND YOU ASSUME ANY AND ALL RISK ASSOCIATED WITH PARTICIPATING IN THE “BILL ON NO ANSWER PROGRAM”, INCLUDING COMPLYING WITH ALL REQUIREMENTS IMPOSED BY THE TELEPHONE CONSUMER PROTECTION ACT (TCPA), THE TELEPHONE SALES RULE (TSR), AND ALL RELATED FEDERAL AND STATE LAWS, RULES AND REGULATIONS GOVERNING TELEMARKETING AND/OR INSURANCE SALES.
THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS EULA AND THE PERMISSION FROM DATALOT FOR YOU TO ACCESS AND USE THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA.
The above disclaimers may not apply in certain jurisdictions that do not allow the exclusion of certain implied warranties. In such jurisdictions, all representations and warranties other than those expressly prohibited by applicable law shall be enforced to the fullest extent of the law.
8. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND, ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL DATALOT, ITS PARENTS, SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, PARTNERS, DIRECTORS, OWNERS, INVESTORS, SHAREHOLDERS, REPRESENTATIVES OR AGENTS (EACH A "PROTECTED PARTY", COLLECTIVELY, "PROTECTED PARTIES") BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER RELIEF OF ANY KIND OR NATURE ARISING OUT OF, IN CONNECTION WITH OR OTHERWISE RELATED TO THIS EULA AND/OR TO YOUR ACCESS AND/OR USE OR INABILITY TO ACCESS AND/OR USE THE PLATFORM OR REPORTS OR CONSUMER LEAD DATA. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE PROTECTED PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, FOR ANY DAMAGES OR LOSSES RESULTING FROM, WITHOUT LIMITATION: LOST PROFITS, LOST REVENUE, LOST INFORMATION, LOST ASSETS, LOST BUSINESS AND/OR OPPORTUNITIES, LOST GOODWILL, LOST DATA, OR OTHER TANGIBLE AND/OR INTANGIBLE LOSSES (EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR SUCH DAMAGES ARE FORESEEABLE).
TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, DATALOT'S TOTAL AGGREGATE LIABILITY AND THAT OF THE PROTECTED PARTIES ARISING FROM OR IN CONNECTION WITH THIS EULA AND/OR YOUR ACCESS AND/OR USE OR INABILITY TO ACCESS AND/OR USE THE PLATFORM AND/OR REPORTS AND/OR CONSUMER LEAD DATA SHALL BE LIMITED TO DIRECT MONEY DAMAGES NOT TO EXCEED THE TOTAL OF FIVE HUNDRED DOLLARS ($500.00). IN NO EVENT WILL DATALOT AND/OR THE PROTECTED PARTIES HAVE ANY CUMULATIVE LIABILITY FOR ANY LOSS OR CLAIM UNDER THIS EULA.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions the company's liability shall be limited to the fullest extent permitted by law.
9. Termination. Without limiting any other remedy available to Datalot, Datalot may immediately terminate this EULA and/or suspend or terminate your account or cease offering the Platform and/or Reports and/or Consumer Lead Data at any time, with or without notice and for any reason, if we have reason to believe, in our sole discretion, that you have failed to comply with your obligations or any of the terms and conditions under this EULA and/or the Master Transfer Agreement. Upon termination or suspension, you agree to immediately cease all access and use of the Platform and Reports and Consumer Lead Data.
10. "Max Bid" Program.
(a) You may participate in our Max Bid Program if you are a pre-pay client. This program allows you to raise or lower your bid per live call transfer, in your discretion, when you want and as often as you want (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 you are willing to pay per live call transfer. The actual dollar amount billed to you by Datalot will be no more than the maximum bid entered by you 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 you only if you are a pre-pay client. You will pay all charges in connection with the program in accordance with this EULA and the provisions of the Master Transfer Agreement.
(c) You understand, acknowledge and agree that Datalot makes no representations, warranties, guarantees or promises that your maximum bid will be accepted, accurately recorded, accurately reflected in the Platform and/or will result in the purchase of a call.
(d) If you have requested that a Datalot representative change the maximum bid price on your behalf (whether electronically, verbally, in writing or otherwise), you understand, acknowledge and agree 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. You assume any and all risk associated with having a Datalot representative take and enter your bid order on your behalf.
(e) If you have increased your 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 you on the system directly, or by a Datalot representative on your behalf after you 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 your participation in it for any reason at any time, in Datalot's sole discretion. If you are no longer a pre-pay client, you automatically will be terminated from the Max Bid Program.
11. Bill on No Answer Program. This voluntary program allows you to have a Datalot Representative collect consumer information from persons interested in your product or service (“Consumer Lead Data”) and email that Consumer Lead Data to you in the event our Representative is unable to reach you for a live call transfer (either the Representative does not receive an answer or receives voicemail when s/he attempts to make the live transfer to you). You are only able to participate in this Program if you voluntarily choose to use the function on the Datalot Platform. You will have to enroll in this function by physically activating it. By choosing to participate in this Program, you are affirmatively agreeing to all the terms and conditions of this EULA and the Master Transfer Agreement.
How the Program Works. The Datalot Representative will first speak to the consumer, gather the necessary/requested Consumer Lead Data and attempt to make a live call transfer to you. If the Representative is unable to reach you, the Representative will obtain verbal consent from the consumer to allow us to email the Consumer Lead Data to you so that you can outbound dial the consumer when you are available or at another designated time specified by the consumer. Upon receipt of verbal permission, the Consumer Lead Data will then be emailed to you and you will then outbound dial the consumer as requested by the consumer and/or in accordance with your own schedule. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE DATALOT REPRESENTATIVE IS ONLY OBTAINING CONSENT FOR YOU TO CONTACT THE CONSUMER BY OUTBOUND DIALING. DATALOT DOES NOT REPRESENT, WARRANT, PROMISE OR GUARANTEE, AND SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, PROMISES AND GUARANTEES, THAT THE CONSUMER WILL CONSENT TO SPEAK WITH YOU WHEN YOU CONNECT WITH THE CONSUMER VIA THE OUTBOUND CALL. YOU ASSSUME ANY AND ALL RISK ASSOCIATED WITH HAVING A DATALOT REPRESENTATIVE TAKE AND ENTER THE CONSUMER LEAD DATA, EMAILING YOU SUCH DATA, YOU OUTBOUND DIALING THE CONSUMER BASED ON THAT DATA, AND YOU SPEAKING WITH THE CONSUMER VIA THE OUTBOUND DIALING.
Pricing. You understand that you will be charged for the emailing of the Consumer Lead Data at the time at which the Datalot Representative is unable to reach you for the live call transfer. For the avoidance of doubt, you will be charged at the time that the Datalot Representative receives your voicemail or no answer when the transfer is attempted. The price for the transfer of the Consumer Lead Data will be the same as what you agreed to pay for a live call transfer. In other words, the pricing will be the same as whatever your bid is then-currently set for you to receive a live call transfer. As applicable, you will pay all charges in connection with the Program in accordance with this EULA and the provisions of the Master Transfer Agreement. In the event of a dispute over the applicable price for the Consumer Lead Data, Datalot's decision shall control and be final and binding in all respects.
Compliance with Laws. You understand, acknowledge and agree that you will follow all applicable federal, state and local laws, rules and regulations governing your use of the Consumer Lead Data and your outbound dialing of the consumer, including but not limited to the TCPA and the TSR, as amended from time to time, as well as all state and federal insurance licensing and sales requirements.
Cancellation. Datalot may cancel the Bill on No Answer Program and/or suspend or terminate your participation in it for any reason at any time, in Datalot's sole discretion.
12. General Provisions.
(a) Survival. All provisions of this EULA that by their nature and/or content are intended to survive cancellation or termination of this EULA and/or the Master Transfer Agreement shall so survive. Without limiting the generality of the foregoing, Sections 4-8 and 10-11 shall so survive.
(b) Amendment. THIS EULA MAY BE CHANGED, SUPPLEMENTED, AMENDED OR MODIFIED ("CHANGED") BY DATALOT AT ANY TIME FOR ANY REASON, IN ITS SOLE DISCRETION, AND THE CHANGED EULA WILL BE POSTED ON DATALOT'S WEBSITE FOR YOU TO REVIEW. YOUR CONTINUED USE OF THE PLATFORM AND/OR REPORTS AND/OR THE MAX BID PROGRAM AND/OR THE BILL ON NO ANSWER PROGRAM AFTER THE POSTING OF THE CHANGES TO THE EULA IS AUTOMATICALLY DEEMED TO BE YOUR ACCEPTANCE OF, AND AGREEMENT WITH, ALL OF THE TERMS AND CONDITIONS OF THE EULA, AS CHANGED. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THE EULA AT ANY TIME, YOU ARE NO LONGER PERMITTED TO USE THE PLATFORM AND/OR REPORTS AND/OR PARTICIPATE IN THE MAX BID PROGRAM OR THE BILL ON NO ANSWER PROGRAM, AND YOU MUST IMMEDIATELY CEASE DOING SO. YOU MAY NOT MODIFY THIS EULA IN ANY MANNER WHATSOEVER AT ANY TIME.
(c) Severability. If any provision of this EULA is declared invalid or unenforceable by any court of competent jurisdiction, applicable statute or rule of law, then such provision shall be deemed automatically adjusted, as permitted by applicable law, to the minimum extent necessary to make it valid and, as adjusted, shall be deemed a valid and enforceable provision of this EULA as though originally included herein. In the event that the invalidated provision cannot be so adjusted, the provision shall be deemed deleted from this EULA. All provisions not declared invalid or unenforceable shall at all times be deemed to be, and shall remain, in full force and effect and legally binding on all parties.
(d) Conflicting Terms. This EULA, together with the Master Transfer Agreement, and the Datalot Platform Privacy Policy ("Privacy Policy"), constitutes the entire agreement between the parties with respect to the subject matter of this EULA and supersedes all prior and contemporaneous communications relating to this EULA. Where there is a conflict between this EULA and the Master Transfer Agreement, the Master Transfer Agreement shall control in all respects, unless expressly set forth to the contrary in this EULA. Where there is a conflict between this EULA and the Privacy Policy, this EULA shall control in all respects, unless expressly set forth to the contrary in this EULA or the Privacy Policy.
(e) Governing Law/Venue. This EULA shall be governed by the laws of the State of New York, without regard to its conflict of laws principles. Each party irrevocably consents to the exclusive venue and jurisdiction of the state and federal courts located in New York, New York.
(f) Assignment. You are expressly prohibited from assigning any of your rights or delegating any of your obligations under this EULA; provided, however, that you may request in writing Datalot's consent for an assignment, which consent Datalot may withhold in its sole and absolute discretion. Any purported assignment without Datalot's express written consent will be null and void. Datalot may assign this EULA to an affiliate, subsidiary or in the event of a merger, acquisition, joint venture, or sale of substantially all of Datalot's assets or business (or any substantially similar transaction) without your consent. Subject to the foregoing, the provisions of this EULA shall be binding upon and inure to the benefit of the parties and their permitted heirs, successors and assigns.
(g) Waiver. Failure of Datalot to require strict performance of any provision of this EULA shall not affect its right to require strict performance thereafter. No delay or failure by Datalot to exercise any right under this EULA, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. No waiver by Datalot of any breach of any provision of this EULA shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
(h) Force Majeure. Datalot shall not be deemed to be in breach of this EULA due to any delay or failure of performance or interruption in the availability of the Platform and/or Reports and/or your access to the Max Bid or Bill On No Answer Programs resulting directly or indirectly from any act of nature or other cause beyond Datalot's reasonable control.
(i) Interpretation. This EULA, the terms and conditions of the Master Transfer Agreement, the Privacy Policy and all documents relating hereto and thereto have been drafted, and will be interpreted in, English.
(j) Section Headings. The section headings used in this EULA are for convenience only and have no legal or contractual effect.
(k) Cumulative Rights and Remedies. The rights and remedies granted to the Company under this EULA are cumulative and in addition to, not in lieu of, any other rights and remedies which the Company may possess at law or in equity.
12. Electronic Signatures. YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE "SUBMIT" BUTTON, OR BY TAKING SUCH OTHER ACTION AS MAY BE DESIGNATED BY DATALOT AS A MEANS OF ACCEPTING THIS EULA, YOU ARE SUBMITTING A LEGALLY BINDING ELECTRONIC SIGNATURE AND ENTERING INTO A LEGALLY BINDING CONTRACT. You acknowledge and agree that your electronic submission constitutes your agreement and intent to be bound by this EULA. 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") or other similar statutes, YOU HEREBY AGREE TO THE USE OF (I) ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS, AND (II) ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PLATFORM OR REPORTS OFFERED BY DATALOT. Further, you hereby waive any right or requirement under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires: (a) an original signature; (b) delivery or retention of non-electronic records; and/or (c) payments, or the granting of credits, by other than electronic means.
Revised and effective: March 2018