How many potential customers near you celebrate their birthday next month?
These General Terms and Conditions and the Order Form that accompanies it are collectively referred to as the “Agreement”. This Agreement is made as of the Effective Date, by and between Celebration Marketing, LLC, a Maryland limited liability company (the “Company”) and the customer on the Order Form (the “Customer”). The Company may hire other entities as “Agents” to assist it in performing its obligations under this Agreement. References to the Company shall include its Agents.
A. The Customer maintains one or more websites in the operation of its business and collectively, all such websites of Customer are the “Customer Websites” and all visitors to the Customer Websites are referred to as “End Users”.
B. Customer wishes to send advertising to certain pre-qualified End Users based on certain demographics.
C. The Company has developed and offers a program to collect Marketing Data (as defined in the Order Form) and send printed and/or digital (e-mailed) advertising (“Advertising”) to such qualified End Users based on the Marketing Data.
D. Customer wishes to purchase the Advertising and obtain the Marketing Data as set forth in the Order Form and subject to these General Terms and Conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Advertising; Detail Regarding Credits.
(a) Advertising. Customer agrees to purchase the Advertising set forth in the Program & Tier Pricing Section of the Order Form. Rates subject to change in the event of a postal increase or change in state tax laws.
(b) Definitions. For the abundance of clarity the terms “Subscription Cycle”, “Rollover Credits” and “Overage Credits” are defined respectively as follows.
(i) Subscription Cycle means the monthly period in which the Customer’s credits are applied. For example, if your initial Launch Date is April 15th then a Subscription Cycle would be from April 15th to May 14th and the next Subscription Cycle would be from May 15th to June 14th, with the same Subscription Cycle continuing monthly after that.
(ii) Rollover Credits means unused Credits from one Subscription Cycle, which are added to the Customer’s available Credits for the following Subscription Cycle. Customer must not have any unpaid Fees in order to use any Rollover Credits and cannot use Rollover Credits in conjunction with use of regular purchased Credits for that Subscription Cycle. All Rollover Credits are automatically forfeited upon termination, expiration or non-renewal of this Agreement. Rollover Credits have no independent cash value.
(iii) Overage Credits means Credits used for matches in excess of the pre-purchased Credits for that Subscription Cycle. Customer must “opt-in” for use of Overage Credits, by providing written notice (e-mail acceptable) to Company for use of Overage Credits. Overage Credits will be charged at the same cost per credit as Customer’s then-current tier price. Company will invoice any Overage Credits used in a given Subscription Cycle at the same time the standard Fees are invoiced for that Subscription Cycle. If Customer does not opt-in to use Overage Credits, Company will cease any End User matching until the next Subscription Cycle.
2. Marketing Data.
(a) Raw Data. During the Term (defined below) the Customer grants the Company such necessary or desirable data (including access domain names, IP addresses, coding, and other aspects of the Customer Websites) to permit the Company to identify the IP addresses and other information of visitors to such Customer Websites (the “Raw Data”). The Company shall mine the Raw Data for each identified Customer Website as requested by Customer (on a mutually agreeable schedule) with respect to each particular Customer Website. The Company shall analyze the Raw Data, compare it with existing databases of the Company and shall provide a report (each a “Report”) to the Customer of marketing data for visitors to the Customer Website during the applicable period, which Reports shall include a form of contact information for individual visitors to the Customer Websites (each a “Contact”).
(b) USE OF MARKETING DATA. FOLLOWING DELIVERY OF THE MARKETING DATA (INCLUDING EACH CONTACT) TO THE CUSTOMER AND AT ALL TIMES DURING AND AFTER THE TERM OF THIS AGREEMENT, THE CUSTOMER SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ITS USE OF THE MARKETING DATA (INCLUDING EACH CONTACT). THE CUSTOMER REPRESENTS AND WARRANTS TO THE COMPANY THAT ITS USE OF THE MARKETING DATA WILL BE IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ALL INTERNATIONAL AND UNITED STATES LAWS INCLUDING, WITHOUT LIMITATION, THE GENERAL DATA PROTECTION REGULATION (“GDPR”) THE CAN-SPAM ACT OF 2003, AND LAWS APPLICABLE TO “DO NOT CALL” REGISTRIES, THE CALIFORNIA CONSUMER PRIVACY ACT, THE CALIFORNIA PRIVACY RIGHTS ACT (EFFECTIVE JAN. 1, 2023), THE COLORADO PRIVACY ACT (EFFECTIVE JULY 1, 2023), THE CONNECTICUT DATA PRIVACY ACT (EFFECTIVE JULY 1, 2023), THE VIRGINIA CONSUMER DATA PROTECTION ACT (EFFECTIVE JAN. 1, 2023), THE UTAH CONSUMER PRIVACY ACT (EFFECTIVE DEC. 31, 2023 AND ALL OTHER SUCH PRIVACY AND DATA PROTECTION LAWS OF THE JURISDICTION IN WHICH COMPANY OPERATES AND/OR WHICH ITS PROSPECTIVE LEADS AND CUSTOMERS IN THE MARKETING DATA RESIDE OR OPERATE).
THE CUSTOMER IS RESPONSIBLE FOR EXECUTING COMPLIANCE WITH ALL PRIVACY LAWS, INCLUDING, MAINTAINING COMPLIANT WEBSITES WITH REQUIRED PRIVACY POLICIES AND TERMS AND CONDITIONS THAT ALLOW FOR LEGAL AND PROPER USE OF THE DATA BY CUSTOMER.
ALL CUSTOMER WEBSITES AND POLICIES WILL ACCOUNT FOR THE ABILITY OF END USERS TO REASONABLY AND EASILY “OPT-OUT” OF THE PROGRAM AND CEASE THE CUSTOMER’S USE OF THE MARKETING DATA RELATED TO THAT END USER.
THE CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY FROM ANY AND ALL DEBTS, CLAIMS, DEMANDS, LIABILITIES, LOSSES, INJURIES, DAMAGES, REASONABLE ATTORNEYS’ FEES AND EXPENSES OF ANY KIND (“CLAIMS AND EXPENSES”) IN ANY WAY INVOLVING, ARISING OUT OF OR RELATED TO CUSTOMER’S: (I) PURCHASE OR USE OF THE MARKETING DATA; (II) BREACH OR THREATENED BREACH OF THIS AGREEMENT; (III) NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND/OR (IV) ANY MATTER RELATED TO ANY END USERS.
(c) No Re-Sale of Marketing Data to Second Tier Customers. Customer may only use the Marketing Data for its own Customer Website and may not resell the Marketing Data or any services in this Agreement to their customer’s customers (hereinafter referred to as “Second Tier Customers”). Accordingly, Customer agrees not to purchase Marketing Data for Customer Websites of any Second Tier Customers and resell such Marketing Data to its Second Tier Customers. Customer acknowledges and agrees that any monies obtained by Customer as a result of the re-sale prohibited by this paragraph shall be due and owing to Company and Customer will be required to forward the contact information for such Second Tier Customers immediately to Company. Furthermore, any such re-sale of Marketing Data prohibited by this paragraph shall allow Company to automatically terminate this Agreement. Customer shall be solely and exclusively responsible for payment of the Fees to the Company for all Marketing Data.
(d) Quality of Marketing Data. The Company provides the Marketing Data on an “as is” basis. That being said, the Company expects to match an average of 25% of unique visitors to a Customer Website to the Company’s consumer database. Customer acknowledges and agrees that this is an average and as such, some Reports necessarily will fall below this average. These averages will also fluctuate over time. Company will update these averages only in writing, and Customer acknowledges that verbal statements made by any party, including Company parties, are not authoritative for setting then-current accuracy or matching benchmarks. If Customer establishes that a majority of the Reports during any six-month period fail to meet the then-current matching or other later-disclosed, written accuracy benchmarks, Customer’s sole remedy shall be limited to a reimbursement of the Fees paid for the Reports for which Customer can demonstrate (with reasonable supporting documentation) did not meet the then-current, written benchmarks. Customer may not make a claim for reimbursement of any Report under this Section 1(d) more than three (3) months after the date of such Report.
2. Fees. The Customer shall pay the monthly fees shown in the Program & Tier Pricing Section of the Order Form. If payment is not received within thirty (30) days from the date of the invoice, Customer will pay interest on the invoiced amount at the rate of 18% per annum (or the highest lawful rate, if lower). Rates subject to change in the event of a USPS postal increase or change in state tax laws.
3. Terms and Termination. The term of the Agreement shall commence on the Effective Date hereof and continue for an initial term of twelve (12) months (the “Initial Term”), and shall thereafter be automatically renewed for one or more additional terms of one month each (each a “Renewal Term”), unless earlier terminated pursuant to the terms of this Agreement or unless either party provides the other party with thirty (30) days written notice prior to the end of the Initial Term or any Renewal Term of its intent to terminate this Agreement. For purposes of this Agreement, the “Term” shall mean the Initial Term and all Renewal Terms that become effective. This Agreement may be terminated prior to the expiration of the Term by the Company if: (i) the Customer fails to pay the Fees when due (provided no such termination shall relieve the Customer of its obligation to pay the Fees); or (ii) the Customer breaches or defaults in any of its representations, warranties, covenants, or agreements set forth in this Agreement if such breach or default remains uncured following a ten (10) day cure period which shall commence upon the Company’s written notice to the Customer of such breach or default. Customer may terminate this Agreement upon written notice to the Company regarding Customer’s failure to comply with Section 1(b).
4. Independent Contractor Status. The Company and the Customer agree that they are acting as independent contractors and nothing in this Agreement shall be construed to create a partnership or joint venture relationship.
5. Representations and Warranties. Each party represents and warrants to the other that: it has full power, capacity and authority to enter into this agreement; the execution, delivery, and performance of this agreement has been duly authorized by all necessary action and constitutes a valid and binding obligation enforceable against it in accordance with its terms; no action, suit or proceeding is pending or, to his or its knowledge, threatened against it before any court, administrative agency, or other governmental authority that brings into question the validity of the transactions contemplated by this Agreement.
6. No Warranty. THE SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY NATURE. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, BUT WITHOUT LIMITATION, COMPANY DISCLAIMS ANY WARRANTY WITH RESPECT TO ANY WEBSITE VISITOR MATCHES, ANY MATCHING CONTENT OR THEIR ACCURACY.
7. Indemnity. Customer hereby represents and warrants to Company and its subsidiaries and affiliates (the “Indemnites”) that neither the distribution of its Advertising via hardcopy or digital format in any manner whatsoever under this Agreement, nor any effects therefrom or incident thereto will, as a result of any of the Customer’s acts, or any of Company’s on the Customer’s behalf hereunder, violate any State, Federal or local law, rule or regulation pertaining to, but not limited to, postal requirements, misrepresentation, libel, trade libel, unfair competition, deceptive business practices, fulfillment, copyrights, trademarks, patents, invasion of privacy, misbranding, labeling, safety, or any other cause. In the event Company receives notice which contests Customer’s right to display a name, trademark, service mark, copyright or other content, Company may discontinue providing Advertising services to Customer without liability to Company until such time that Customer has resolved that dispute with the other party to Company’s satisfaction. Customer shall indemnify and hold the Indemnitees harmless against any loss, and against any claims, suits, costs or expenses, including reasonable attorney’s fees, of any kind whatsoever, incurred by the Indemnitees as a result of the Customer’s breach of the representations and warranties contained in this paragraph or otherwise incurred by the Indemnitees in connection with the printing and/or mailing (or e-mailing) of Customer’s Advertisement. It is the responsibility of the Customer to insure Customer’s product or service from product liability and Customer agrees to hold the Indemnitees harmless from any product liability claims and any other claims arising from the use or misuse of such products or services.
8. Disclaimer of Any Guarantees or Estimates. Nothing in this Agreement and nothing in Company’s statements to Customer shall be construed as a promise or guarantee about the success of the Marketing Data or any marketing campaign or similar outcome of Company’s services described in this Agreement. Company makes no such promises or guarantees. Company’s comments about the outcome of the services are expressions of opinion only. Customer expressly acknowledges by its signature on the Order Form that Company has made no promises about the outcome of the services and that any opinion offered by Company in the future will not constitute a guaranty or guarantee.
9. Miscellaneous. This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements whether written or oral. Company may modify these Data Agreement Terms from time to time upon written notice to Customer. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without reference to its conflicts of law or choice of law principles. Exclusive venue for any suit pertaining to this Agreement shall be in the federal or state courts located in Baltimore, Maryland. The non-prevailing party in any action shall also pay the prevailing party’s reasonable attorney’s fees and expenses. The failure of a party to insist upon strict adherence to any provision of this Agreement on any occasion shall not be considered a waiver of such provision or deprive that party of the right thereafter to insist upon strict adherence to that provision or any other provision of this Agreement. In no event shall the Company or Customer be liable for any special, indirect, incidental or consequential damages. If a court of competent jurisdiction determines that any covenants in this Agreement are unreasonable as to duration, scope, or territory, such covenants shall be enforceable as to duration, scope, and territory to the extent the court determines to be reasonable. This Order Form may be executed in counterparts or electronically, which, taken together, shall constitute the whole of the Agreement as between the parties and copies of electronic signatures are deemed to be official and binding.
-End of Data Purchase Agreement Terms and Conditions-
How many potential customers near you celebrate their birthday next month?