Terms and Conditions as of June 5, 2019

Definitions

1. Effective Date – The date that the Agreement takes effect, as specified in the Agreement
2. Start Date – The date in which the Monthly Service Fee is due to BuyerGenomics by Customer, which is 14 days after the Effective Date
3. Fee Schedule – The Customer selected Term, Volume Tier, Pricing for an Agreement
4. Monthly Service Fee – The amount due by Customer to BuyerGenomics on the First Day of Every Month the Agreement is in effect
5. Term – The length of the Agreement in months or years as specified in the Fee Schedule
6. Customer Volume Tiers – Pricing structure in which the Customer will be under, as specified in the Fee Schedule. Customer Volume Tiers are set by BuyerGenomics based on the total number of individual customer records the Customer uploads into the BuyerGenomics Software

1. Usage. BuyerGenomics shall provide access to use the Software through recent versions of Google Chrome, Microsoft Edge, or Firefox web browser software, in accordance with the terms of the Usage set forth herein. Throughout the term of this Agreement, the Software, including all features and functionality, will perform in conformance with all documentation provided by BuyerGenomics. In the event that a software issue or problem is identified by Customer or BuyerGenomics, preventing delivery of documented functionality, BuyerGenomics will investigate and resolve such issues as quickly as possible, but not later than 30 days from receipt of the documented issue.
2. Monthly Service Fee. Customer shall pay to BuyerGenomics the fees described in the Fee Schedule
3. Start Date. The Monthly Service Fee will take effect at the Start Date. The Start Date is 14 calendar days after the Effective Date.
4. Term and Termination. The Term of the Agreement is specified in the Fee Schedule of your BuyerGenomics Agreement. Customer acknowledges that Agreement pricing is based on a specific Term, and that BuyerGenomics incurs substantial costs for third party data and onboarding labor that are amortized over the Term, and therefore Customer may not terminate prior to the end of the Term.
5. Customer Volume Tiers. Customer will automatically be upgraded at the end of each calendar month to the then current volume-tier, as specified in the Fee Schedule.
6. Early Termination due to Breach or Federal CAN-SPAM Compliance. Agreement may be terminated prior to the end of the Term, under specific conditions, at which time the remaining balance on the agreement, and any past due balance is due and payable.
7. In the event of a material breach of any provision of this Agreement by Customer, unless Customer cures such breach within ten (10) business days after BuyerGenomics has provided Customer with written notice of such material breach.
8. Immediately, upon notice from BuyerGenomics, if Customer is investigated by regulatory authorities for failing to comply with the provisions of the CAN-SPAM Compliance Certification.

In these specific cases only, early termination shall obligate Customer to pay the Early Termination Fee, which is equal to 75% of the sum of all remaining Monthly Service Fee costs per the contracted Term in the Fee Schedule.

7. Payment Terms.
8. Monthly Service Fee. Fixed recurring charges based on a minimum commitment as set forth on the Fee Schedule are billed monthly in advance of service for a given month, and additional usage-based charges are billed monthly in arrears. If BuyerGenomics and Customer agree that Customer will use more than the Minimum Commitment during any particular month, BuyerGenomics may require additional advance payments as agreed upon to cover any overages. If the pre-paid overage is not used, it will be credited to Customer’s next invoice, or immediately refunded upon termination or expiration of the Agreement.
9. Payment; Credit; Taxes. The Minimum Commitment must be paid in advance of product usage by Customer on or before the first day of each calendar month. If Customer is paying by credit card, Customer authorize BuyerGenomics to charge Customer credit card or bank account for all fees payable on the first day of each calendar month during the Term. Customer further authorizes BuyerGenomics to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party. If Customer is paying by invoice, BuyerGenomics will invoice Customer no more than thirty (30) days before each subsequent Billing Period, and other times during the Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form. Customer shall be responsible for paying any and all applicable sales tax either to BuyerGenomics or directly to the taxing authorities.
10. Late Payment. Customer agrees to pay BuyerGenomics monthly late payment charges of one and one-half percent (1.5%) of the undisputed balance due for invoices outstanding greater than fifteen (15) business days after Customer’s receipt of written notice of delinquency from BuyerGenomics. If any payment is in arrears greater than thirty (30) days past the due date, BuyerGenomics reserves the right to terminate the Services and the Usage. BuyerGenomics shall have the right to charge Customer and Customer shall be responsible for any attorneys’ fees and/or collection costs incurred by BuyerGenomics in efforts to collect any past due amounts.
11. Responsibility for Fees for Services. Customer shall continue to be liable for any use of its BuyerGenomics account subsequent to the termination or expiration of the Term.
12. Technical Support. Customer’s employees may access the BuyerGenomics email support system, via support@BuyerGenomics.com, twenty-four hours per day, seven days per week, excluding national holidays. BuyerGenomics will use reasonable commercial efforts to respond to such emails by the end of the next business day after it was received. Customer is entitled to two (2) free hours of support during each monthly billing cycle, except that support related to technical issues with the Software shall be unlimited. All additional support unrelated to technical issues with the Software will be billed at the hourly contracted rate, if any, set forth on the Fee Schedule (the “Hourly Support Rate”).
13. Hosting Environment. BuyerGenomics’ cloud-hosting environment is multiple-carrier redundant with an uninterruptible power source. Notwithstanding the foregoing, BuyerGenomics cannot assure that the Service will be uninterrupted or available at any specific time. In the event that BuyerGenomics experiences a hardware or software interruption impacting online availability or routine processing, customer will be notified as soon as possible during normal business hours. If availability of the Software drops below 98.5% for any calendar quarter, Customer may terminate this Agreement for cause.
14. Confidentiality.
15. Definition. “Confidential Information” means any information disclosed or made available by one party to the other party in connection with this Agreement related to the disclosing party’s business, whether disclosed in writing, orally or by inspection, and is identified as “Confidential” or “Proprietary” or which a party has reason to believe or suspect is confidential. Without intending to restrict the generality of the foregoing, (i) Customer hereby acknowledges that the Software and the ideas, technology, techniques, processes and procedures constituting the Software or relating to the use of the Software, and any information disclosed by BuyerGenomics, in whatever form, that relates to the Software, are valuable trade secrets of BuyerGenomics and considered Confidential Information, and (ii) BuyerGenomics acknowledges that all information relating to Customer’s current and future products, designs, industry insights, processes, customers, prospective customers, marketing plans, and finances are considered Confidential Information.
16. Obligation. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without the other party’s prior written consent. Each party shall take reasonable measures, at least equal to measures it takes with respect to its own confidential information, to prevent the disclosure and unauthorized use of Confidential Information of the other party.
17. Exceptions. Notwithstanding the above, the restrictions of this Paragraph 9 shall not apply to information that:
18. was independently developed by the receiving party without any use of the Confidential Information of the other party and by employees or other agents of (or independent contractors hired by) the receiving party who have not been exposed to the Confidential Information;
19. becomes known to the receiving party, without restriction, from a third party without breach of this Agreement and who had a right to disclose it;

iii. was publicly available at the time it was disclosed or becomes publicly available through no act or omission of the receiving party; or

1. was rightfully known to the receiving party, without restriction, at the time of disclosure.
2. Notwithstanding anything to the contrary, Confidential Information may be ; provided, however, that the receiving party shall provide prompt notice thereof to the other party and shall use its reasonable best efforts to obtain a protective order or otherwise prevent public disclosure of such information.
3. Remedy. Customer acknowledges that its breach of Paragraph 10 (Confidentiality) or any of Customer’s obligations under Paragraph 15 would cause irreparable harm to BuyerGenomics, the extent of which would be difficult to ascertain. Accordingly, Customer agrees that, in addition to any other remedies to which BuyerGenomics may be legally entitled, BuyerGenomics shall have the right to obtain immediate injunctive relief in the event of such breach of such Paragraphs by User or any of its officers, employees, consultants or other agents.
4. DISCLAIMER; LIMITATION OF LIABILITY. THE PARTIES AGREE THAT, EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, (I) EACH PARTY, ITS AFFILIATE OR SUBSIDIARY CORPORATIONS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY ACT OR FAILURE TO ACT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR SERVICES PROVIDED PURSUANT TO THE TERMS OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGE WAS REASONABLY FORESEEABLE OR SUCH PARTY WAS ADVISED OF SUCH DAMAGE, AND (II) EACH PARTY’S MAXIMUM LIABILITY FOR ANY ACTION RELATING TO THIS CONTRACT WHETHER BASED IN CONTRACT, TORT OR ANY OTHER BASIS WHATSOEVER SHALL BE LIMITED TO THE AGGREGATE AMOUNT RECEIVED IN THE MOST RECENT CALENDAR YEAR BY BUYERGENOMICS PURSUANT TO THE TERMS OF THIS AGREEMENT. BUYERGENOMICS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYERGENOMICS HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Indemnification.
6. Each party agrees to indemnify and hold the other harmless from and against any and all third party claims, actions, losses, damages, liability, costs and expenses, including reasonable attorneys’ fees (collectively, “Losses”) arising out of or in connection with (a) the breach of any covenant, representation or warranty made Customer hereunder; and (b) the use of the Software or Services by Customer (as to Customer, if Customer is using the Software in breach of this Agreement, and as to BuyerGenomics, if Customer is using the Software not in breach of this Agreement). The indemnified party shall promptly notify indemnifying party of any such claims and the indemnifying party shall bear full responsibility for the defense (including any settlements) thereof; provided, however, that (i) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such claim; and (ii) the indemnifying party shall not settle any such claim without the indemnified party written consent.
7. Hiring of Employees. BuyerGenomics and Customer agree not to solicit or hire (except by means of general public solicitation) the other party’s employees with which it had direct contact in connection with this Agreement during the term of this Agreement and for one (1) year subsequently without prior approval of the current employer.
8. Security. Customer is responsible for the security of its login(s) and password(s) and is solely liable for any unauthorized use of the same, unless due to a breach of BuyerGenomics’ software or systems.
9. Data Ownership. Any and all data uploaded to Software and information provided by Customer (“Customer Provided User Data”) is sole property of Customer and BuyerGenomics has no ownership rights in any Customer Provided User Data or Confidential Information. Customer Provided Data includes, without limitation, all personally identifiable information, transaction data, website behaviors, email response data, historical promotions data, marketing plans, primary consumer research or survey response data, and sales data provided by Customer to BuyerGenomics.
   
   Customer hereby acknowledges that the Software and the ideas, technology, techniques, processes and procedures constituting the Software or relating to the use of the Software, any data that is produced by the Software and is not provided by the Customer through their data feed or other Confidential Information, or derived therefrom, and any information disclosed by BuyerGenomics, in whatever form, that relates to the Software, are property and valuable trade secrets of BuyerGenomics and considered Confidential Information.
10. Data Security. BuyerGenomics’ information security program (“Security Program”) has a combination of administrative, technical, and physical safeguards (that are appropriate for BuyerGenomics’ size and complexity, the nature and scope of its activities, and the sensitivity of information received from Customer and third party providers) sufficient to protect any Confidential Information disclosed to BuyerGenomics pursuant to this Agreement and Addendum(s). BuyerGenomics shall maintain, comply with and adhere to its own Security Program with respect to its obligations under this Agreement and Addendum(s). BuyerGenomics shall as soon as reasonably practical after discovery and subject to any reasonable restrictions placed on Customer by any law enforcement agency in the process of conducting an investigation relating thereto, report to Customer any known unauthorized disclosure of client’s Confidential Information (“Security Incident”) including the full details of such Security Incident and take all such measures as may be reasonably necessary to prevent any further Security Incident. Customer and/or its designees, shall, upon reasonable advance written notice to BuyerGenomics, have the right to conduct a security audit of BuyerGenomics’ security procedures, relevant operations, facilities and systems related to BuyerGenomics’ possession and use of the client’s Confidential Information to confirm BuyerGenomics’ compliance with the provisions of this Section. Customer agrees that any such security review conducted under this Section shall: (i) be limited to BuyerGenomics’ facilities, systems and operations relating to the Confidential Information; (ii) occur during normal business hours; and (iii) shall not interfere with BuyerGenomics’ normal business operations or violate any confidentiality obligations that BuyerGenomics has to third parties.
11. Terms of Customer’s Usage of The Software and third party data; Reservation of Rights by BuyerGenomics; Obligations of Customer
12. BuyerGenomics hereby grants to Customer a non-exclusive right to use the Software during the Term in connection with Customer’s business in accordance with this Agreement, solely to access and use the Services through the website established by BuyerGenomics for such purpose, using ID and passwords authorized by BuyerGenomics for that purpose, subject to the terms, conditions and restrictions set forth herein (the “Usage”). BuyerGenomics does not grant to Customer any other rights that are not expressly granted by the Usage. Customer may not use the Software to provide services to others.
13. Customer acknowledges that the Software contains the proprietary material of BuyerGenomics, and is protected by intellectual property laws and international treaties. Customer further acknowledges that subject to the rights granted herein to Customer, BuyerGenomics is and shall remain at all times the sole and exclusive owner of the Software.
14. BuyerGenomics grants no usage or other right to Customer to use any trademarks or service marks of BuyerGenomics.
15. The term of the Usage shall terminate simultaneously with the termination or expiration of this agreement. Upon expiration or termination of this Usage, Customer shall promptly discontinue all use of the Software and the intellectual property rights embodied therein, and certify in writing to BuyerGenomics within thirty (30) days of such expiration or termination that it does not have possession of any copies or partial copies existing in any media whatsoever, of any intellectual property of BuyerGenomics. No expiration or termination of this Usage shall serve to terminate the obligations of the parties that are intended to survive, including the payment of any outstanding obligations owed the other party.
16. Customer agrees that it will not use the Software in any way that constitutes, involves or contributes to any violation of law or intellectual property or other rights of third parties that is not already inherent to the Software. Customer further agrees to make every reasonable effort to protect their login and password at all times, and to never share login or passwords with any party externally to Customer, under any circumstance. Customer may request login and password access for vendors and other internal employees expressed in writing to BuyerGenomics. BuyerGenomics will grant access to third parties, not employed by Customer at its sole discretion.
17. Customer shall not directly or indirectly: (i) modify, change, add, alter or create any derivative works of the Software, (ii) decompile, reverse engineer, or otherwise attempt to derive the source code for any part of the Software or any media in which the Software is embodied, (iii) redistribute, encumber, sell, rent, lease, sub-usage, or otherwise transfer rights or provide access to any third party to any part of the Software or any media in which the Software is embodied, except its independent contractors and/or service providers who require access in order for Customer to use the Software and exercise the rights granted in accordance with the Agreement; (iv) copy or otherwise reproduce the Software or any copy of the Software, or any media in which the Software is embodied, to which it obtains access; or (v) remove, alter or destroy any proprietary markings contained on or in the Software or any media in which the Software is embodied.
18. Assignment. This Agreement and the Usage, and the rights and benefits hereunder and thereunder may not be sub-contracted, sublicensed, assigned or otherwise transferred without the prior written consent of the non-assigning party; provided, however, that this Agreement may be assigned by either party (a) to a person or entity who acquires substantially all of such party’s assets, shares or business by sale, merger or otherwise and (b) to an affiliate of such party, in either case that is not a competitor of the non-assigning party.
19. Publicity. Within thirty (30) days of initiation of use of Software, Customer will, if asked by BuyerGenomics and if satisfied with the performance of BuyerGenomics and the Software: (a) participate in a joint press release with BuyerGenomics, subject to Customer’s prior written approval of the release; (b) agree to have the Customer’s name and logo included in BuyerGenomics’ printed marketing materials and Website;; (c) cooperate with BuyerGenomics in the creation of a case study regarding Customer’s use of the Software, subject to Customer’s written approval of the final case study prior to publication or distribution; and (e) allow BuyerGenomics to use Customer as a reference. All such authorizations and approvals may be revoked by Customer at any time, in Customer’s sole discretion.
20. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof. Each of the parties hereby consents to the exclusive jurisdiction and venue of the courts located in the State of New York, New York County for any dispute arising out of or related to this Agreement.
    
    Customer and BuyerGenomics acknowledge and agree, any and all controversies, claims, demands or disputes between the parties arising out of or relating to the work covered by this agreement and any subsequent Project Work Order, or the breach thereof, shall be settled by arbitration in accordance with the American Arbitration Association’s  Commercial Arbitration Rules. Such arbitration hearings shall be held in New York City and judgment upon the award rendered may be entered in any Court having jurisdiction thereof. The Arbitrator(s) shall award the prevailing party in the arbitration its reasonable attorneys’ fees and costs from the non-prevailing party.
21. Force Majeure. Neither party will be deemed to be in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, act of terrorism, war, shortages of material or supplies or any other cause reasonably beyond the control of such party (“Force Majeure”), provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its diligent, good faith efforts to cure the breach. In the event of such a Force Majeure, the time for performance or cure will be extended for a period equal to the duration of the Force Majeure, but if the Force Majeure exceeds one (1) month in duration following Force Majeure, this Agreement may be terminated.
22. Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing, shall be delivered to the respective addresses of the parties set forth at the beginning of this Agreement unless either party notifies the other in writing of a change of address, in the manner provided herein, and shall be deemed to have been duly given if (a) delivered personally, (b) mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, (c) sent by reputable, nationally recognized overnight mail or delivery.
23. Entire Agreement; Amendment. This Agreement, together with any appendices, schedules or exhibits hereto or referenced herein constitutes the full and complete understanding of the parties hereto and supersedes all prior agreements and representations, and may be amended only in writing signed by the parties.
24. Counterparts. This Agreement may be executed in counterparts each of which will be deemed an original and all of which together shall constitute one and the same agreement.
25. Survival. The provisions of this Agreement shall survive the expiration or termination hereof to the extent necessary to affect the intentions of the parties.

CAN-SPAM Compliance Certification

1. Certification. The undersigned hereby certifies to BuyerGenomics that (a) each e-mail address obtained by the undersigned, and to which any promotions or offers are being sent on through BuyerGenomics Corporation mail systems and/or Software, or sent on behalf of BuyerGenomics Customers, affiliates, subsidiaries or assigns, either shall comply with Section 2 of this Certification or has been obtained through “affirmative consent” as such term is defined in the CAN-SPAM Act of 2003, and acts amendatory thereto (“CAN-SPAM Act”); (b) the undersigned does not and has not engaged in any conduct prohibited by the CAN-SPAM Act, including without limitation e-mail harvesting, dictionary attacks or other deceptive practices; and (c) no e-mail sent by the undersigned violates any laws or regulations, including without limitation, the CAN-SPAM Act.
2. Compliance. In the event that any e-mail address has not been obtained by Customer by means of “affirmative consent”, Customer shall ensure that each and every e-mail message sent to such address complies with the CAN-SPAM Act, by including: (i) accurate routing information (i.e., the “to” and “from” fields, (ii) an accurate and non-misleading subject line reference, (iii) proper notice in the body of the message that the e-mail is an advertisement or solicitation, (iv) a clear and conspicuous opt-out mechanism that will respond to any opt-out requests within ten business days, and (v) your postal address.
3. Indemnification. The undersigned does hereby indemnify and hold harmless BuyerGenomics, its, employees, agents and affiliates, and their respective successors and assigns, against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs (including without limitation settlement costs), losses and expenses (including reasonable attorneys’ fees) not caused by BuyerGenomics, which BuyerGenomics Corporation may suffer as a result of any Customer’s breach of this Certification.
4. Amendment to Contract. This Certification shall constitute a part of the Service and Usage Agreement by and between BuyerGenomics and Customer, executed concurrently herewith, to which this Certification is attached.

CUSTOMER THIRD-PARTY DATA USE AGREEMENT

1. Customer Data Use Agreement. Customer and BuyerGenomics acknowledge that, except as otherwise expressly agreed among the relevant parties, any third party data or shall at all times remain the intellectual property of Customer’s licensors and third party data owners who provided the data to Customer, and that Customer and BuyerGenomics have no proprietary rights whatsoever in the data.
2. Warranty. Each party 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.
3. Data Permitted Uses / Restrictions. Customer may use the data provided pursuant to this Agreement, subject to the following: The data may be used for Customer’s marketing programs to consumers and businesses, including house file enhancements, mailing list screens, modeling and list analysis. The data will only be used to perform marketing through a direct mail, telemarketing, or email campaign. In the event that third party data is purchased by customer, and uploaded to the buyer genomics software platform, customer agrees that said data will not be used to perform or support targeted advertising served via the internet (other than an email campaign), cable or satellite television, or cellular or wireless devices unless otherwise authorized in writing by the third party data owner. Any email deployed by Customer using the data will: (i) contain an opt-out provision, (ii) identify Customer and provide a valid physical address, and (iii) accurately express the intent of the email communication. Notwithstanding anything to the contrary in this Agreement, this right shall survive the expiration or termination of this Agreement.
4. The data in BuyerGenomics may only be used: (i) to determine the likelihood that an individual would be interested in or respond to a solicitation from Customer; and (ii) for affirmative marketing uses and not for exclusionary or discriminatory purposes. Customer 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 data 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. Third party data products may not be used in an individual look-up reference application without written consent of BuyerGenomics
5. All content incorporated in marketing communications sent to any list created by or for Customer derived from recipient address data (i.e., e-mail or postal address) provided by BuyerGenomics 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; and (iii) comply with all applicable privacy policies, ethical use and Fair Information Practices published by the Direct Marketing Association (“DMA”). BuyerGenomics represents and warrants that any recipient address data (i.e., e-mail or postal address) provided by BuyerGenomics is obtained (ii) in compliance with all applicable federal and state laws, rules and regulations; and (iii) in compliance with all applicable privacy policies, ethical use and Fair Information Practices published by the Direct Marketing Association (“DMA”)
6. The BuyerGenomics-provided data and any licensed data product 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 ; (iv) in connection with any list enhancement or data appending projects performed for a third party. Co-branded marketing campaigns are permitted as long as they do not apply third party data, or they receive written approval from the syndicated data owners.