TERMS AND CONDITIONS FOR DATA LICENSE INSERTION ORDER
Terms and Conditions for Data License Insertion Order
The following terms and conditions (the “Terms and Conditions”) shall govern the insertion order (“IO”) (collectively the “Agreement”) under which KB3 Marketplace LLC (“KB3 Marketplace”) will offer certain marketing services which consist of sending emails through which KB3 Marketplace carries or offers third party promotions and advertising on behalf of itself and/or third parties (the “Marketing Services”) as may be specified in the IO. Database License and Delivery.
Database License and Delivery.
1.1 License Grant. Subject to the terms and conditions of this Agreement, Affiliate grants to KB3 Marketplace and KB3 Marketplace accepts a non-exclusive, royalty-free, revocable, worldwide license to manage, make use of and have access to the proprietary computerized database composed of email addresses, SMS addresses and related consumer information compiled, owned and maintained by Affiliate (the “Database”) in connection with the provision of its Marketing Services (the “License”). Without limiting the foregoing, KB3 Marketplace shall be authorized under the License to import the Database into its email delivery system and to use the Database in the conduct of its business, including but not limited to, to send commercial emails containing promotions to email addresses within the Database on behalf of itself and/or third parties. KB3 Marketplace shall have the sole discretion to develop or locate promotional or advertising campaigns from third parties (the “Advertisers”) to be delivered to the consumers. Further, KB3 Marketplace shall have sole discretion with respect to the creation of the “subject” and “from” lines used in such emails and SMS messages; provided, however, that any such action shall be in accordance with all applicable United States Federal and state laws and shall not infringe on any other party’s intellectual property rights. Notwithstanding anything herein to the contrary, KB3 Marketplace may partner with other parties to effectuate the Marketing Services including third parties sending out emails to the Database.
1.2 Delivery of the Database. Upon the execution of this Agreement, Affiliate shall promptly deliver to KB3 Marketplace the Database for use by KB3 Marketplace, subject to the terms and conditions of this Agreement. Each record in the Database will include at a minimum the following fields: email address, zip code, first name, last name, industry and/or job title, opt-in date/timestamp, URL and IP Address.
1.3. Duplicate and Unverified Addresses. Affiliate acknowledges that, in
the course of conducting its business, KB3 Marketplace has acquired and may continue to acquire email addresses and SMS addresses through various sources, including, without limitation, through licenses from third parties and/or independent development of its own lists. If, at any time, an address included in the Database is determined by KB3 Marketplace to be (i) a duplicate of an address owned by KB3 Marketplace or (ii) a malformed or undeliverable record (an “Unverified Record”), such address shall thereafter not be attributable to Affiliate for purposes of this Agreement.
In addition, if, at any time, KB3 Marketplace determines that it has acquired a particular email or SMS address contained in the Database from both Affiliate and one or more other sources, KB3 Marketplace shall thereafter choose the address which it received first. The number of email and SMS addresses attributed to Affiliate for any given Promotion after de-duplication, verification and, to the extent applicable, source assignment steps have been performed by KB3 Marketplace shall be in the reasonable determination of KB3 Marketplace. Notwithstanding the foregoing, if KB3 Marketplace sends out emails or SMS messages solely under a white label offering, Affiliate will receive full attribution and credit for all such addresses submitted to KB3 Marketplace other than Unverified Records.
1.4 During the term of this Agreement, in addition to its other obligations set forth in this Agreement,
(i) KB3 Marketplace will take commercially reasonable steps to safeguard the Database;
(ii) KB3 Marketplace will not violate any applicable United States Federal or state law, statute or governmental regulation, including the CAN-SPAM Act of 2003, in the performance of the Marketing Services using the Database; and
(iii) Except as may be required by law or necessary to prove compliance with laws, KB3 Marketplace will not sell, rent, lease, license, exchange and/or otherwise transfer the Database.
1.5 Notwithstanding anything to the contrary contained herein, KB3 Marketplace may permit third party agents engaged by KB3 Marketplace (the “Third Party Agent”) to access and use the Database for purposes of assisting KB3 Marketplace with the Marketing Services and/or its rights and obligations under the Agreement, so long as such Third Party Agent agrees to abide by and comply with security, confidentiality and non-use provisions that are no less protective of the Database than those contained in this Agreement.
1.6 Job Inclusion: Affiliate may provide KB3 Marketplace with a feed of its jobs. KB3 Marketplace will include the jobs from Affiliate in the
number of spots specified in the IO followed by additional jobs paid for and provided by third parties to KB3 Marketplace. KB3 Marketplace will use the same algorithms to determine if a job is relevant to the job alert search query set up by a job seeker regardless of whether Affiliate provided the job to KB3 Marketplace or if a third-party provided the job to KB3 Marketplace. If the jobs provided by Affiliate to KB3 Marketplace include fewer than the number specified in the IO such relevant jobs then KB3 Marketplace will include in the alert all such relevant jobs from Affiliate and the remainder of the jobs in the alert will be provided by the third-parties if possible and if not, then KB3 Marketplace will include as many relevant jobs as possible.
Representations and Warranties.
2.1. Each Party hereby represents and warrants that (a) it has the authority to enter into this Agreement and to fully perform its obligations hereunder, (b) this Agreement does not and will not conflict with any of its obligations to any third parties, and (c) it complies and will comply with all state and US Federal laws and regulations applicable to the performance of its rights and obligations under this Agreement.
2.2 Affiliate further represents and warrants to KB3 Marketplace that:
(i) The execution, delivery and performance of this Agreement by Affiliate will not violate any law, statute or other governmental regulation;
(ii) The Database was and will be obtained, collected and compiled without employing email or SMS address harvesting, dictionary attacks and/or any other deceptive or illegal act or practice;
(iii) The information in the Database was and will be obtained, collected, compiled and maintained using methods that fully comply with all applicable governmental laws, rules and/or regulations including, without limitation, federal and state statues such as the CAN-SPAM Act of 2003;
(iv) (a) all individuals included in the Database (the “Consumers”) will have consented to receiving commercial emails and SMS messages, and such consent will include the use contemplated by this Agreement and (b) the Database does not and will not include records of any person who has unsubscribed from the Database. Affiliate shall maintain records evidencing such consent including, without limitation, applicable IP addresses, time/date stamps, source, privacy policies, and terms and conditions allowing transfer to a third party, and Affiliate will promptly supply such records to KB3 Marketplace upon its request.
2.3 THE EXPRESS WARRANTIES IN THIS SECTION 2 ARE IN LIEU OF, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, REGARDING THIS AGREEMENT, THE DATABASE, THE MARKETING SERVICES AND ALL PERFORMANCE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
Ownership. The Parties expressly acknowledge and agree that, as between the Parties, ownership and title to the Database licensed hereunder, including all intellectual property rights and goodwill related thereto, shall at all times be and remain exclusively with Affiliate. Subject to the confidentiality provisions of Section 6 below, KB3 Marketplace may, in its sole discretion, keep copies of the Database and records pertaining to the Database as may be necessary to demonstrate compliance with laws with respect to its use of the Database. Data related to open rates, click-through rates and general performance of mailings to the Database shall be owned jointly by KB3 Marketplace and Affiliate or their agents or assigns. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be construed to nullify, limit or otherwise affect any right or license KB3 Marketplace may have in or to email addresses or other data lawfully acquired through a source other than Affiliate, even if such addresses or data constitute duplicates of addresses or data included in the Database.
Fees, Payments Terms and Taxes.
4.1 Fees and Payment Terms. In consideration of the License provided to KB3 Marketplace as set forth herein, KB3 Marketplace and Affiliate agree to the payment of the fee set forth in the IO. If the IO states that KB3 Marketplace will pay Affiliate a license fee equal to percentage, this license fee will be net of any taxes, surcharges, chargebacks, bad debt, credits, mailing costs (at the rate of $.50 cost per thousand) and third party data costs (e.g. cookie costs), paid by KB3 Marketplace in performance of the Marketing Services as a result of emails sent to email addresses delivered by Affiliate to KB3 Marketplace as set forth in this Agreement (“Marketing Services Revenue”). For the avoidance of doubt, gross revenue does not include any revenue generated by Advertisers that is not paid to KB3 Marketplace.
4.2 Fee Impact. The fees referred to in the IO (e.g., the license fee) may be impacted, both current, and past, by (i) Affiliate’s traffic quality, (ii) clicks on jobs that were discontinued by an advertiser, (iii) revenue exceeding an Advertiser’s budget, or (iv) clicks on which an Advertiser did not pay. In some instances, KB3 Marketplace may rely on reporting
by an Advertiser or another third party. KB3 Marketplace does not guarantee the accuracy of such reports and any changes in these reports may impact Affiliate’s associated fee. AFFILIATE ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL KB3 MARKETPLACE BE RESPONSIBLE OR LIABLE TO AFFILIATE FOR ANY INACCURACIES IN ANY ADVERTISER OR OTHER THIRD-PARTY REPORTING.
4.3 Taxes. Affiliate is responsible for paying any sales, use, and similar taxes applicable to the Database license hereunder. If KB3 Marketplace has the legal obligation to pay or collect any tax for which Affiliate is responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by Affiliate, unless Affiliate provides KB3 Marketplace with a valid tax exemption certificate authorized by the appropriate taxing authority.
Term and Termination.
5.1 Term. This Agreement will commence on the Effective Date and will continue in effect until terminated pursuant to the termination provisions of this Agreement.
5.2. Termination. Either Party may terminate this Agreement for any reason or no reason upon forty- eight (48) hours prior written notice to the other Party. In the event of a termination of this Agreement for any reason:
(i) Any License granted pursuant this Agreement shall be deemed immediately and automatically terminated; and
(ii) Each Party shall promptly destroy or return all other Confidential Information of the other Party, except to the extent that a separate agreement then in effect between the Parties applies with respect thereto and provides otherwise.
(iii) Affiliate shall cease providing the Database to KB3 Marketplace;
(iv) KB3 Marketplace shall immediately cease all sending of emails and SMS messages either to or through the use of email and SMS addresses contained within the Database;
(v) All amounts due and owing hereunder, if any, will be paid within ninety (90) days of the effective date of termination; and
(vi) KB3 Marketplace shall destroy the Database and, at Affiliate’s request, provide written certification of the same.
5.3 No Liability for Termination. In the event of any termination of this Agreement or a license pursuant to the termination provisions set forth herein, neither Party shall be liable to the other, because of such termination, for any expected compensation or profits or for any investments, expenditures or commitments made in connection with this Agreement, except for those obligations or liabilities expressly provided
for in this Agreement.
5.4 Survival. The provisions of Sections 2, 3, 5, 6, 7, 8, 9, and 12 through 17 of this Agreement shall survive any termination of this Agreement.
Confidentiality
6.1 Confidential Information. “Confidential Information” means all non-public information of a Party (the “Disclosing Party”) or its affiliates or subsidiaries which has either been identified by the Disclosing Party as confidential or proprietary at or prior to the time of disclosure or which, given the nature or circumstances surrounding the disclosure, should reasonably be understood by the other Party (the “Receiving Party”) to be confidential or proprietary. Without limiting the foregoing, Confidential Information includes, but is not limited to, any non-public technical, financial (including revenue amounts), trade secret or competition-sensitive information which a Party or its subsidiaries or affiliates has developed and/or acquired and in good faith considers to be competitively valuable or sensitive, or which such Party maintains in confidence.
6.2 Confidentiality Obligations. Affiliate and KB3 Marketplace acknowledge that, in the performance of this Agreement, each Party may receive Confidential Information of the other Party. The Receiving Party agrees that it and its agents and representatives will: (a) hold all Confidential Information of the other Party in strict trust and confidence, (b) not disseminate any Confidential Information to any third party, and (c) not use any Confidential Information for any purpose except in direct connection with the proper performance of its rights and obligations as contemplated by this Agreement. Further, the Receiving Party’s internal disclosure of Confidential Information shall be only to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent with this Agreement. Except as expressly provided for in this Agreement, the Receiving Party will not acquire any proprietary rights, including any license rights, title or interest in the Disclosing Party’s Confidential Information except for the limited right to use such Confidential Information in accordance with this Agreement for the sole purposes contemplated hereunder. The Receiving Party shall promptly notify Disclosing Party of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information by any person. The confidentiality obligations imposed herein shall survive any termination of this Agreement for a period of one (1) year.
6.3 Exclusions. Notwithstanding the foregoing, the restrictions on disclosure and use set forth herein shall not apply to information that (i) is publicly available or in the public domain at the time disclosed or becomes
publicly available or enters the public domain through no fault of the Receiving Party; (ii) is rightfully communicated to the Receiving Party without an obligation of confidentiality by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the Receiving Party without use of or reliance on the Disclosing Party’s Confidential Information or the participation of individuals who have had access to the Confidential Information; or (v) is approved for release or disclosure in writing by an authorized representative of the Disclosing Party without restriction. In addition, the Receiving Party will not be in violation of these nondisclosure terms with regard to a disclosure of the Disclosing Party’s Confidential Information that is required by a valid and binding law, rule, regulation, court order or other legal process, provided that the Receiving Party shall (to the maximum extent permitted by such law, rule, regulation or court order or legal process): (a) give prompt written notice of such demand or request for disclosure to the Disclosing Party; (b) limit the disclosure of such Confidential Information solely to the scope required to comply with such law, rule, regulation, court order or other legal process; and (c) assist the Disclosing Party, at the Disclosing Party’s expense, to the extent reasonably practicable in seeking a protective order with respect to the treatment of such Confidential Information.
6.4. Injunctive Relief. The Receiving Party acknowledges that, in the event of any breach of this Section 6, the Disclosing Party may be irreparably and immediately harmed and may not be made whole by monetary damages alone. Accordingly, in addition to any other remedy to which it may be entitled at law or in equity, the Disclosing Party shall be entitled to seek an injunction or injunctions to prevent breaches or threatened breaches of this Section 6 and/or to compel specific performance with this Section 6.
Indemnification. Each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party, its subsidiaries, affiliates and parent companies and its directors, officers, agents and employees (each an “Indemnified Party”), from and against any and all losses, costs, liabilities or expenses incurred by the Indemnified Party (including without limitation reasonable attorney’s fees and other costs of litigation) arising from a third party claim against such Indemnified Party resulting from: (i) any breach by the Indemnifying Party of the terms, covenants, agreements, representations or warranties set forth in this Agreement, (ii) any breach by the Indemnifying Party of any applicable state or U.S. Federal law or regulation; or (iii) in the case of the Marketing Services, any consumer, client, or governmental
complaint arising from the Marketing Services to the extent that it is caused solely by the Indemnifying Party. The indemnification obligations set forth in this Section 7 are contingent on (a) prompt written notice by the Indemnified Party to the Indemnifying Party of any third party claim, action or demand (provided, however, that any failure or delay in providing such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the failure or delay actually and materially prejudices the Indemnifying Party’s defense of such third party claim), (b) sole control of the defense and settlement thereof by the Indemnifying Party, and (c) reasonable cooperation of Indemnified Party, at the Indemnifying Party’s expense, to facilitate such defense or settlement. Notwithstanding the foregoing, the Indemnifying Party will not consent to the entry of any judgment or enter into any compromise or settlement with respect to a third party claim for which it is defending an Indemnified Party hereunder without the prior written consent of the Indemnified Party unless such judgment, compromise or settlement (a) provides for the payment by Indemnifying Party of money as sole relief for the claimant, (b) results in the full and general release of the Indemnified Party from all liabilities arising or relating to, or in connection with, the third party claim and (c) involves no finding or admission of any violation of law, regulation or the rights of any person and no effect on any other claims that may be made against the Indemnified Party; provided, that, if the Indemnified Party fails to consent to a settlement proposed by the Indemnifying Party, then the Indemnifying Party’s obligation to this claim shall be capped to the amount that in the proposed settlement and all further costs and expenses associated with such claim shall be the sole responsibility of the Indemnified Party.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION) ARISING FROM OR RELATED TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE GREATER OF (i) THE AMOUNT OF FEES PAID OR OWED BY KB3 MARKETPLACE LLC TO
AFFILIATE FOR SERVICES HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE A CLAIM IS RAISED HEREUNDER OR (ii) THE AVERAGE ANNUAL FEES PAID UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
Assignment. Neither this Agreement nor any duties or obligation under this Agreement shall be assigned or delegated by either Party, without the prior written consent of the other Party, except in the event of a sale, transfer, merger or other such disposition of all or substantially all of such Party’s assets or stock. Any attempted assignment or delegation in violation of this section will be null and void. Subject to the preceding sentence, the rights and liabilities of the Parties under this Agreement will bind and inure to the benefit of the Parties’ respective successors and permitted assigns and delegates.
Relationship of the Parties. The Parties are each independent contractors and no agency, partnership, franchise, joint venture or employee/employer relationship is intended or created by this Agreement.
Non-Exclusivity. Each Party acknowledges and agrees that this Agreement and any license granted hereunder is non-exclusive. Nothing herein shall be construed to prohibit Affiliate from contracting with other service providers in connection with the Database or to prohibit KB3 Marketplace from contracting with other list providers for the acquisition of their respective email and SMS lists.
Notices. All notices, requests and other communications to a Party under this Agreement must be in writing (including email, if provided for below, so long as a confirmation of delivery and/or receipt of such email transmission is received) and will be given to the addresses set forth below. All notices, requests, demands, waivers and other communications must be delivered by (a) personal delivery, (b) reputable overnight delivery service (including Federal Express, UPS and DHL), or (c) if an email address is provided for the Party in the IO, email, in each case to the respective address listed in the IO or later provided by a Party pursuant to this Section 12. A notice will be deemed to have been made on the date (i) of delivery with respect to (a), (ii) of delivery or the date on which delivery was refused as indicated on the delivery service’s record of delivery with respect to (b), and (iii)
indicated in the confirmation of delivery or receipt (whichever is earlier) if transmitted during business hours, or the next business day if transmitted after business hours, with respect to (c).
Cooperation. Both Parties agree to fully and promptly cooperate with each other in resolving any accounting discrepancies or other issues and concerns that may arise under this Agreement. Except for a breach of the confidentiality provisions of this Agreement, prior to either Party commencing any legal action under this Agreement, the Parties agree to try, in good faith, to settle any dispute amicably between executives of the respective Parties who have sufficient authority to sign a binding settlement agreement.
Modification. KB3 Marketplace may add, remove or alter features and functionality from time to time. KB3 Marketplace reserves the right to update or modify these Terms and Conditions at any time without prior notice, and such changes will be effective upon 15 days from posting of such change. Disputes arising under these Terms and Conditions will be resolved in accordance with the version of the Terms and Conditions in place at the time the dispute arose. Any special terms Affiliate may have negotiated with KB3 Marketplace that differ from the Terms and Conditions must be agreed to in writing by KB3 Marketplace through either certified e-mail (i.e., e-mail containing a digital signature and generating a log of the email’s receipt) or printed contract expressly verifying the applicable terms. Email exchanges between Affiliate and KB3 Marketplace alone will not be sufficient to modify these Terms and Conditions.
Waiver. Except as otherwise expressly provided herein, no purported waiver by any Party hereto of any breach by the other Party of its obligations, representations, warranties, agreements or covenants hereunder will be effective unless made in writing, and no failure to pursue or elect any remedy with respect to any default under or breach of any provision of this Agreement will be deemed to be a waiver of any subsequent, similar or different default or breach.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent permissible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
Governing Law and Jurisdiction. This Agreement will be governed by
and interpreted in accordance with the laws of the State of New York without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be brought solely in the state and federal courts in Nassau County, New York, and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. Nothing contained herein shall be deemed to affect the right of any Party to serve process in any manner permitted by law.
Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersede all oral and prior written agreements, understandings, and communications between the Parties with respect thereto. In the event of any inconsistency between the IO and the Terms and Conditions, the IO shall control. These Terms and Conditions, together with the IO, (i) may be amended only by written agreement executed by an authorized representative of each party; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties.
Revised October 1, 2020