1. SCOPE OF AGREEMENT
Intentsify LLC (“Intentsify”) provides its customers with data that signals an increase in a company’s propensity to buy products or services (“Intent Data”) and with Intent Data activated marketing services, through Intentsify’s proprietary software platform (collectively, the “Services”), which they can use for lead generation and advertising activities on a performance model or a coordinated series of tactics that (a) focus on one or a few brands or products, (b) are directed at a particular identified segment of the general population (target audience), and (c) are aimed at achieving a specific objective (“Campaigns”). The Services purchased by the customer (“Customer”) will be detailed in an order form executed by both parties (the “Order Form”).
- PROVISION OF SERVICES
2.1 Grant of Access Rights. Subject to the terms and conditions of this Agreement, Intentsify hereby grants to Customer a limited, non-exclusive, non-sublicensable, and non-transferable right during the term set forth in the Order Form (the “Order Form Term”), to access and use the Services solely for its internal business purposes and solely by Users (as defined below).
2.2 Users. The Services shall be used solely by employees, agents and/or representatives acting on behalf of Customer for whom Customer has issued a username and password supplied by Intentsify (“Users”). Customer shall be permitted concurrent access and use of the Services for the number of concurrent Users set forth on the Order Form. Intentsify will assign an initial password to Customer and Customer must then assign a username and password to each individual User to be used solely by that User. Customer’s assigned username and passwords shall be maintained as confidential by Customer and shall not be distributed or disclosed to a third party.
2.3 Restrictions. Customer shall not, and shall not permit any person, entity, or Users to: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, disclose, or otherwise make available the Services to or for the benefit of a third party (including on a service bureau, time-sharing or any similar basis); (b) modify, enhance, reproduce, adapt, or make derivative works of the Services; (c) remove any proprietary notices included within the Services; (d) reverse-engineer, reverse-assemble, decode, or decompile, or otherwise attempt to derive or gain access to any software component or source of the Services or the methods used to compile the Services; (e) use, or allow the use of, the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, that involves any unfair or deceptive practices, or otherwise violates applicable, laws, rules or regulations; (f) introduce in or to the Services any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Services, alter, damage or delete any data or retrieve or record information about the Services or its uses; and (g) act in a fraudulent, tortious malicious, or negligent manner when using the Services.
2.4 Implementation. Intentsify agrees to implement the Services for Customer, in exchange for the implementation fees set forth in the Order Form, if any. Intentsify further agrees to provide phone support during its normal business hours, at no additional charge, during the Term.
2.5 Customer Responsibilities. Customer agrees to employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all usernames and passwords to protect against any unauthorized access to or use of the Services. In addition, Customer shall: (a) ensure that access credentials to the Services are kept confidential and access is enabled only through encrypted connections; (b) give employees appropriate permission levels to the Services, monitor their activities, and revoke access to the Services within 24 hours of termination of employment; (c) alert Intentsify within 72 hours of any security incidents that could impact the Services or Intentsify’s systems (e.g., compromised credentials, a stolen laptop, and network compromise); (d) maintain the security of servers and other devices (including, but not limited to, by implementing sufficient password protocols and the physical and environmental controls necessary to ensure availability of the Services); (e) maintain up-to-date operating system patching and active anti-malware on devices used to connect to Customer’s environment; and (f) comply with all applicable laws and regulations in its use of the Services and in its collection, disclosure and use of Customer Data (as defined below), including those laws and regulations relating to personal data protection and privacy.
- TERM AND TERMINATION
3.1 Term of Agreement and Order Form. The term of this Agreement shall commence upon the effective date of Customer’s first Order Form and continue until expiration or termination of the last Order Form. The specific Order Form Term shall be set forth in the applicable Order Form and may be extended based upon mutual written agreement of the parties.
3.2 Termination. Either party may, at its option and without further notice, immediately terminate this Agreement and all Order Forms: (a) breaches any material obligation under this Agreement and such breach is not cured within thirty (30) days after the receipt of written notice of the alleged breach; (b) admits in writing its inability to pay its debts generally as they become due; (c) makes a general assignment for the benefit of creditors; (d) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (e) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (f) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (g) ceases to do business as itself or through a successor.
3.3 Effect of Termination. Upon the effective date of termination of this Agreement, all licenses granted hereunder shall terminate, and Customer shall immediately cease any and all use of the Services. For ninety (90) days after the date of termination or expiration of this Agreement, Customer shall have the right to download all copies of Customer Data. Following such period, Intentsify shall destroy (and, upon request, certify in writing such destruction) all Customer Data from any electronic media containing them. The terms of Sections 2.3, 3.3, 4, 5, 6, 8, 9 and 10 shall survive termination or expiration of this Agreement.
4.1 Fees. Fees shall be invoiced in accordance with the Order Form and are due within 30 days of invoice receipt. In the event of any overdue payments that are not paid within 10 days of written notice from Intentsify, Intentsify reserves the right to charge interest from the due date at the lesser of the rate of one percent (1%) per month (or the maximum rate permitted by law) and/or to suspend Customer’s access to the Services. All costs of collection, including reasonable attorneys’ fees, shall be paid by Customer.
4.2 Taxes. Customer is responsible for paying all applicable fees and taxes it may incur in connection with access to the Services. Customer agrees to pay amounts equal to any Federal, state or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to any amounts payable by Customer to Intentsify hereunder or in connection with this Agreement, excluding taxes based on Intentsify’s net income.4.3. Returns.
(a) An “Intent Activated Lead” is a specific email address that has been activated and meets the lead activation criteria (“LAC”) set forth in the Order Form. The LAC outline the criteria defining Campaigns on behalf of Customer to generate Intent Activated Leads consistent with the terms of the LAC. The LAC specifies the individual advertisements or promotions to be run (or who will provide them), the sizes of the advertisements, the beginning and end dates, and costs. The LAC may also include targeting criteria and total volume, as well as allowed marketing methods, day-parting and geographic location or other limitations.
(b) In the event of any Invalid Leads, Customer will be eligible for replacement Intent Activated Leads. An “Invalid Lead” is an Intent Activated Lead that: (i) has invalid or erroneous contact information; (ii) does not match the target criteria for the LAC in which it was generated; or (iii) is an exact duplicate of a lead that has been provided within the previous six (6) months. For clarification, the following will not be considered Invalid Leads: (A) returns of emails which Intentsify has verified as deliverable; (B) returns generated prior to Customer’s change to one or more campaign parameter; (C) returns more than thirty (30) days past delivery; and (D) suppressed leads or domains not provided at the time of campaign setup.
(c) If Customer believes it received an Invalid Lead, Customer must notify Customer’s campaign manager via email within thirty (30) days of delivery of the lead with the following information: (1) a statement regarding why the Intent Activated Lead is being returned; (2) the email address and the campaign name associated with the Invalid Lead; and (3) the Customer’s name, phone number, mailing address, and email address. Thereafter, Intentsify will review Customer’s submission to determine whether Customer received an Invalid Lead. If Intentsify determines Customer received an Invalid Lead, it will promptly issue Customer a replacement as set forth in this Section 4.3(b). For the avoidance of doubt, Customer shall not be entitled to any refunds or credits, and Customer will still be charged for all Intent Activated Leads purchased.
5.1 Customer Data. Intentsify acknowledges that, as between Intentsify and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User through the Services (“Customer Data”). Customer hereby grants to Intentsify a non-exclusive, royalty-free, irrevocable, worldwide license to reproduce, distribute, modify, and otherwise use and display the Customer Data to provide the Services to Customer. Further, Intentsify agrees to comply with any applicable laws and regulations when collecting and maintaining Customer Data. Customer Data does not include information and data regarding Customer’s use of the Service that are derived by or through the Services and are sufficiently different from underlying Customer Data that such Customer Data and the identity of Customer or any Authorized User cannot be reverse-engineered or otherwise determined from the inspection, analysis or processing of such information (“Usage Data”).
5.2 Services. Intentsify and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Services, Usage Data, and Intent Data and of all intellectual property rights therein (including any modifications or improvements made thereto) (“Intentsify IP”). Customer shall not remove any proprietary, copyright, trademark, or service mark legend from any Intentsify IP provided by Intentsify. Intentsify reserves all rights not expressly granted to Customer in this Agreement. Except for the rights expressly granted herein, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights in or to the Intentsify IP or the Services.
5.3 Intent Data. Intentsify grants to Customer a non-exclusive, non-sublicensable, and non-transferable license during the Term to access and use the Intent Data solely for Customer’s internal business purposes and in connection with the Services. Without limiting the foregoing and in addition the restrictions set forth in Section 2.3, Customer shall not at any time, directly or indirectly, publish, enhance, or display any compilation or directory based upon information derived from the Intent Data.
6.1 Each party agrees that any non-public information, data, materials or know-how, including without limitation, fees, methods, software, algorithms, documentation, drawings, processes, techniques, technical and other business information which may be supplied by one party to the other party in connection with this Agreement, whether orally or in writing, that are either designated as proprietary and/or confidential at the time of disclosure, or which, by its nature, would be considered by a reasonable person to be proprietary and/or confidential (collectively, “Confidential Information”), are confidential and constitute valuable assets of the disclosing party. Without limiting the foregoing, (a) Intentsify acknowledges and agrees that Customer Data are Confidential Information of Customer, and (b) Customer acknowledges and agrees that the Services, Usage Data, Intent Data, and statistical performance results of any evaluation or benchmark tests run on the Services by or on behalf of either Customer or Intentsify are Confidential Information of Intentsify.
6.2 Confidential Information does not include: (a) information which is or becomes publicly available other than through disclosure in breach of this Agreement; (b) information disclosed or made available by a third party without restriction and without breach of an obligation of confidentiality; (c) information independently developed by one party without use of or reference to any Confidential Information of the other party, as evidenced by applicable documentation; or (d) information which was already known by the receiving party at the time of disclosure.
6.3 Each party agrees to use the Confidential Information only for the purposes specifically authorized in this Agreement, to hold such Confidential Information in strict confidence, and to not disclose any of the Confidential Information to any third party except as necessary to provide the Services or as otherwise contemplated under this Agreement. Each party agrees to limit access to Confidential Information to those employees and contractors whose use of or access thereto is necessary for the authorized use of the Confidential Information under this Agreement. Customer agrees not to use, or allow any third party to use, any Confidential Information to aid in the development or marketing of any product similar to or competitive with the Services.
6.4 The obligations of non-disclosure set forth above shall not apply to the extent that a party is legally required to produce Confidential Information pursuant to a subpoena or other legal process or order of a court of competent jurisdiction, provided that such party provides prompt written notice to the other party of such process or order and produces only that portion of the applicable Confidential Information legally required under such process or order after the other party has had an opportunity to challenge such process or order.
6.5 Upon written request from the disclosing party, the receiving party shall return to the disclosing party all Confidential Information in the receiving party’s possession or control, and all copies thereof, or, at the disclosing party’s option, certify its permanent, secure destruction in writing.
- LIMITED WARRANTY AND DISCLAIMER
7.1 Limited Warranty. Intentsify warrants that, during the term of the Order Form, the Services will be performed in a professional and workmanlike manner and will substantially conform to the specifications contained in the Order Form. Intentsify’s sole responsibility under this limited warranty shall be to use commercially reasonable efforts to correct or replace the portion of the Services which fail to conform to such limited warranty, provided, however, that Customer has reported in writing to Intentsify any defect or error claimed to be a breach of such warranty. Intentsify shall have no liability under the foregoing limited warranty if: (a) Customer, an Authorized User or any third party acting on Customer’s behalf modifies the Services; (b) Customer fails to give Intentsify written notice of the claimed breach of warranty in a timely manner; (c) the failure to conform is caused in whole or part by persons other than Intentsify, or by products, equipment, software or operating environments not furnished by Intentsify; or (iv) Customer fails to implement any correction, update, enhancement, improvement, expansion or revision thereto which Intentsify has provided to Customer. Customer shall be exclusively responsible for the supervision, management and control of Customer’s and each Authorized User’s use of the Services and for the application of the Services to Customer’s business.
7.2 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING, THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ARE THE ONLY WARRANTIES GIVEN BY INTENTSIFY WITH RESPECT TO THE SERVICES AND INTENT DATA, WHICH ARE OTHERWISE PROVIDED ON AN AS-IS, AS-AVAILABLE BASIS. INTENTSIFY AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE. INTENTSIFY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
8.1 Intentsify shall defend Customer against any claim or action brought against Customer, and will indemnify and hold harmless Customer from and against any damages, liabilities, costs or expenses (including reasonable attorneys’ fees) awarded by a court or included as part of a final settlement, to the extent based upon the infringement by the Services or the Intent Data of any United States patent, trademark, copyright or other intellectual property right of a third party (“Claims”), provided that (a) Intentsify is promptly notified in writing of any Claim, (b) Intentsify has sole control over the defense and/or settlement of the Claim, and (c) Customer gives Intentsify all available information and assistance (at Intentsify’s expense) to enable Intentsify to do so.
8.2 In addition, if, as the result of any Claim, Customer is enjoined from using the Services, Intentsify, at its sole option and expense, may: (a) procure the right for Customer to continue to use the Services; (b) replace or modify the Services so as to make them non-infringing (without materially impacting functionality or performance); or (c) if Intentsify is not able to accomplish either of the foregoing alternatives on commercially reasonable terms, terminate Customer’s license to the Services and refund to Customer that portion of the fee prepaid for the then-current Order Form Term which reflects the unused portion of such Order Form Term.
8.3 The foregoing indemnity shall not apply if the Claim results from: (a) Services that have been modified by anyone other than Intentsify or its subcontractors; (b) Customer’s use of the Services with software, hardware, data or services not provided by Intentsify; (c) misuse of the Services or other breach of this Agreement; (d) use of other than the most current, unaltered corrections and updates to the Services which have been provided to Customer at no additional charge; (e) Customer Data; or (f) compliance by Intentsify with designs, plans or specifications furnished by or on Customer’s behalf. Intentsify shall not be liable hereunder for any settlement made by Customer without Intentsify’s advance written approval. Customer will indemnify, defend and hold harmless Intentsify from and against any Claims brought against Intentsify arising out the circumstances described in this paragraph.
8.4 THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES WITH RESPECT TO ANY THIRD PARTY INFRINGEMENT CLAIMS.
- LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO INTENTSIFY UNDER THE ORDER IN QUESTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY OR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, OR RELATING TO, THIS AGREEMENT, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY, AND EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY. This Section 9 does not apply to violations by one party of the other party’s intellectual property rights.
10.1 Marketing Usage. Intentsify may use Customer’s name and logo in its marketing materials and on its website (pursuant to Customer’s guidelines and trademark usage policies which are provided to Intentsify in advance), provided that the parties must mutually agree prior to issuing any press release or other public statement regarding this Agreement.
10.2 Force Majeure. Notwithstanding anything in this Agreement to the contrary, no default, delay or failure to perform on the part of either party, excluding Customer’s payment obligations, shall be considered a breach of this Agreement if such default, delay or failure to perform is due to causes beyond such party’s reasonable control, including, but not limited to, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inaction of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, the infrastructure of the Internet, or default of a common carrier.
10.3 Choice of Law. This Agreement and all claims related to it shall be construed and governed in all respects according to the laws of the Commonwealth of Massachusetts, without regard to any conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
10.4 Export Laws. Neither party shall commit any act or request the other party to commit any act which would violate the export control laws, rules or regulations of the United States or any other country.
10.5 Waiver. No waiver or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same on any other occasion or of any other option, right or privilege.
10.6 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except (a) to an affiliate, (b) in the event of a sale of all or substantially all of such party’s assets or stock, or (c) in the case of an assignment by Intentsify of monies due or becoming due. In any such event, any assignee shall comply with all of the terms and conditions of this Agreement.
10.7 Independent Contractors. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
10.8 Entire Agreement. This Agreement and any Exhibits hereto, together with any Order Forms, contain the entire understanding and agreement between Customer and Intentsify and supersede all prior agreements or understandings, oral or written, relating to the subject matter hereof. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted or standard terms or conditions in any invoice or purchase order shall be of no effect. In the event of any conflict or inconsistency between an Order Form and this Agreement, the Order Form shall control.10.9 Future Commitments. Intentsify has made no commitments or promises orally or in writing with respect to delivery of any future software features or functions. In relation to any future software features or functions, all presentations, RFP responses and/or product roadmap documents, information or discussions, either prior to or following the date herein, are for informational purposes only, and Intentsify has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless delivered under a support program or specifically agreed to in writing by both parties. Customer acknowledges that no purchasing decisions are based upon any future software features or functions