This Data Management Agreement ("Agreement") is made, delivered and effective as of __________, the "Effective Date"), by and Global Response Partners, LLC., a Delaware Limited Liability Company, with its principal place of business located at 910 Sylvan Ave. Suite 125, Englewood Cliffs, NJ 07632 ("Global Response Partners," “GRP,” or “Licensee”), and _____, and its affiliated entities with registered office located at ____ (hereinafter “_____,” “Licensor,” or “Data Owner”). Data Owner and GRP may each be referred to as a “Party” or collectively as the “Parties”.
Data Owner through ownership and operation of several websites (“Sites”), has collected and maintains a computerized database (the "Database" or the “List”) composed of but not limited to telephone numbers, mobile numbers (Mobile Data), IP addresses, submission dates, names, postal addresses, email addresses (any part of such information and all or any portion of the Database may be referred to in this Agreement as the "Data") relating to natural persons (“Data Subject” and “Consumer” below); and
GRP has developed, owns, and has the rights relating to the provision of marketing services through and is not limited to, an outbound telemarketing program (“OTM”), permission–based email marketing (“EMM”), and mobile marketing services (“SMS”; OTM, EMM and SMS are collectively referred to as the “GRP Services”), and has access to various advertising campaigns and offers (collectively, “Advertising”) from a variety of advertisers (the “Advertisers”) that can be advertised utilizing GRP’s services and chosen partner services; and
Data Owner wants GRP to have access to and use all or a portion of the Database for Advertising, pursuant to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below, the Parties hereto agree as follows:
Database Access.Data Owner hereby grants to GRP, and GRP hereby accepts, a non-transferable license to access and use the Database for the purpose of locating suitable Vendors, Partners and Advertisers and transmitting Advertising subject to the provisions of this Agreement.
GRP Obligations.GRP will be solely responsible for selecting appropriate Advertising. GRP shall not engage in any Advertising that involves any Prohibited Content, only as set forth in Exhibit A . If Data Owner does not complete Exhibit A with either restrictions of content of advertising and/or frequency of advertising, than it shall be asserted that no restrictions apply to advertising of the data. Any and all restrictions after the execution date of this agreement must be agreed to by both parties in writing. Notwithstanding anything else in this Agreement, Data Owner understands and acknowledges that GRP does not guarantee any minimum amounts of Advertising or fees.
GRP will exercise its sole discretion in developing content for Advertising subject to applicable law and other restrictions and obligations in this Agreement.
Subject to Data Owner’s obligations in Section 6 below, and Data Owner’s representations and warranties in connection with the Data, GRP will ensure that each Advertising represented and all Advertising that utilizes Data complies with all applicable local, state, federal and international laws and regulations. Without limiting the generality of the foregoing, GRP shall ensure that: Advertising messages are not sent to any address or phone number in the Data if Data Owner or the Consumer advises GRP that such address is part of:
(a) any “do not e-mail” or “do not call” lists applicable to any Advertising campaign;
(b) the suppression Data maintained by Data Owner for the database (the “Data Owner Suppression List”);
(c) any unsubscribe request; or
(d) any Advertiser suppression lists; each commercial Advertising message sent or promoted will include opt out information within the body of the message, and either
(i) a link to a website which will include a valid unsubscribe form which will enable a Consumer to unsubscribe from the List, or
(ii) a phone number from which the Consumer will able to receive additional information on how to unsubscribe. Such unsubscribe shall be given effect within 48 hours after written notice to GRP.
Restrictions Upon Use of Data.The Licensee hereby agrees that it will hold and use the Data strictly in accordance with the following conditions, unless otherwise agreed in writing:
The Data may be received, held and possessed by Licensee at Licensee’s business address listed above or at a third party service vendor and/or third party advertising partner, at Licensee’s sole discretion.
Licensee shall not use the Data as part of any CD-ROM product and/or resell the Data in any way except as provided in this Agreement.
Licensee will not, nor will it knowingly allow Advertisers to use the Data to create any interactive online, CD-ROM or other derivative product. Licensee will establish reasonable precautions to prevent such unauthorized use: provided, however, Licensee shall not be in breach of this Agreement if it promptly notifies Licensor in writing of any unauthorized use of which it becomes aware and reasonably cooperates with Licensor to prevent any further unauthorized use.
Licensee shall not publicly display the Data on the Internet.
Comply with and shall ensure that its subcontractors comply with all Relevant Laws which may be applicable to the performance of its obligations under this agreement (including, but not limited to the Data Protection Act 1998 (as Amended):
Perform its obligations under this Agreement in a way which enables licensor at all times to comply with all applicable Relevant Laws;
Notify Licensor immediately on becoming aware of any breach or suspected breach by the Licensee provided Licensors request do all such things as are reasonably necessary at its own costs in order to minimize the impact of such breach, and promptly notify licensor, as soon as it is aware of any unauthorized access of any computerized data that compromises the security, confidentiality or integrity of all data provided by Licensor to the Licensee, any failure by the Licensee to comply with any applicable laws, or any event that requires Licensee or Company to take any actions ( including providing notices ) under any such laws. For purposes of this Agreement, Relevant Laws means: (i) any statute, regulation, by-law, ordinance or subordinate legislation which is in force for the time being to which a Party is subject; (ii) the common law as applicable to the Parties (or one of them) for the time being: and (iv) any applicable industry code, policy, guidance, standard or accreditation terms enforceable by law which is in force for the time being, and/or stipulated by any regulatory authority to which Licensor is subject for the time being. Only restrictions set forth in Exhibit A shall be deemed applicable to the Data under this Agreement.
Notwithstanding the foregoing, to the extent that Licensee receives responses, confirmations or other forms of communications from, or enters into transactions with, Consumers contacted by Licensee utilizing the Data, Licensee shall own any and all such records (“Response Data”), and no restrictions contained herein concerning the use of any applicable Consumers’ records shall apply. Data Owner acknowledges that it shall have no rights with respect to any such Response Data collected directly by Licensee or its customers regarding the Consumers in connection with the Campaigns.
License Fees. GRP agrees to pay the fees to Data Owner for Advertising fees received by GRP through use of the Data in the amounts set forth in Exhibit A. Unless otherwise noted in Exhibit A, fees shall accrue in the month in which GRP receives payment for the relevant Advertising from the Advertisers, and shall be paid within forty-five (45) days of the end of that month. GRP shall deduct any sales, value-added, use or other taxes (except for taxes based on net income of a Party), as well as any commissions, bad debts, or chargebacks and/or costs associated with revenue from Advertisers, also associated vendors and service providers utilized to delivery marketing and media shall be deducted before calculating fees. All amounts will be paid in US dollars unless otherwise agreed to in writing.
Reporting. GRP will provide Data Owner, on a monthly basis, with an aggregate report of the estimated performance results of all Advertising campaigns. GRP will provide Data Owner with a monthly report each calendar month of all Advertising activity including calculation of compensation due to Data within fifteen (15) days of the end of each calendar month. In the event an advertiser has failed to pay GRP for campaigns marketed to the data, GRP shall adjust reporting accordingly and pay only what commissions have been received.
Term The initial term ("Term") of the Agreement shall be two (2) years commencing on the Effective Date. The Term of this Agreement will renew automatically for additional one (1) year periods, unless earlier terminated as set forth in Section 8.
Termination. Either Party may terminate this Agreement, with or without cause and for any reason whatsoever, at any time upon giving the other Party sixty (60) days prior written notice thereof.
Either Party may terminate this Agreement if the other Party is in breach hereunder and fails to cure such breach within five (5) business days after written notice thereof from the non-breaching Party.
Termination of this Agreement by Data Owner shall not terminate GRP’s license to use the Data until any active campaigns have been completed. GRP’s obligations to pay any amounts accruing prior to termination, or after termination if any campaigns continue to use the Data, as well as Sections 8-13 inclusive and Section 15, shall survive termination of this Agreement.
Ownership. GRP acknowledges and agrees that Data Owner owns all right, title and interest to and in the Data and the Data Owner Suppression List under this agreement, except as may otherwise be agreed in writing between Data Owner and GRP or its affiliates. GRP shall own any and all rights, title and interest to the GRP Technology and any data, and/or response data created, obtained or collected through Advertising to the Data, including but not limited to advertiser reporting, sales, campaign performance and statistics. Data Owner acknowledges that GRP has several sources of data and may receive or create data that duplicates specific Data found in the Database, and that Data Owner’s ownership of the Data and Database shall not preclude GRP’s creation, use and maintenance of such duplicate data during or after the Term of this Agreement. GRP and Data Owner by a separate amendment or insertion order executed concurrently with or following the execution of this Agreement, may agree that GRP and Data Owner will develop “white label offers” using GRP’s affiliate network known as Global Response Partners (the “White Label Offers”), and that the data generated from the White Label campaigns, including but not limited to telephone numbers, mobile numbers, IP addresses, submission dates, names, postal addresses, and email addresses (the “White Label Data”) will be owned jointly by GRP and Data Owner and that each of GRP and Data Owner and their respective affiliates shall be free to market products and services to the persons, addresses, telephone numbers, e-mail addresses or other forms of identification generated in or through the White Label Data without any obligation to share any revenues, fees, commissions or profits generated by or arising from use of the White Label Data or otherwise account to the other for use of the White Label Data.
Confidentiality. “Confidential Information” means any data or information, oral or written, treated as confidential that relates to either Party’s past, present or future research, development or business activities, including but not limited to any information relating to software, tools, specifications, services, developments, documentation, ideas, inventions, processes, plans, products, financial information, customer and supplier lists, forecasts and projections which have been originated or developed by personnel of either Party or their affiliates or by third parties under contract to either Party to develop same, or which have been purchased by, or licensed to, either Party.
Each Party shall: (a) hold the Confidential Information of the other, including information or materials provided by one Party to the other, in trust and confidence and avoid the disclosure or release thereof to any other person or entity; (b) use the same degree of care as it uses to avoid unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care; and (c) not use the Confidential Information of the disclosing Party for any purpose whatsoever except for the benefit of the disclosing Party to further the purposes of this Agreement. Each Party shall disclose the Confidential Information of the other only to those of its employees and independent contractors having a need to know such Confidential Information, and shall obligate by written agreement all such employees and independent contractors to keep confidential the Confidential Information under terms at least as protective and as restrictive as the terms in this Section 10.
Exceptions: Confidential Information will not be deemed to include information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the Party receiving such information in breach of its obligations under this Agreement; (c) is rightfully communicated to a Party by a person not known to such Party to be bound by confidentiality obligations to the other Party to this Agreement; (d) is already in the recipient’s possession free of any confidentiality obligations to the other Party at the time of disclosure; (e) is independently developed by the recipient; (f) is required by law or regulation to be disclosed, provided that the Party that is legally required to disclose the information gives the other Party notice of such legal requirement promptly after being given notice of such requirement; or (g) is approved in writing for release or disclosure by the disclosing Party without restriction.
Representations and Warranties. Data Owner represents and warrants to GRP that:
11.1 it has full power and authority to enter into this Agreement;
11.2 the execution, delivery and performance (including, without limitation, the license of the Data) by Data Owner of its obligations under this Agreement will not violate any law, statute or other governmental regulation;
11.3 the Data has been and will be compiled by Data Owner in accordance with, and the Data and Data Owner fully complies at all times with:
(a) all applicable laws and regulations, including without limitation, all copyright, trade secret and other intellectual property laws, the Privacy and Data Protection Requirements, Department of Justice, FCC, OFT, Tele-communications for example the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and the Regulation of Investigatory Powers Act 2000, and all relevant consumer protection laws; and
11.4 the Data does not include records of any Data Subject who has unsubscribed or requested to be removed from the Database, and Data Owner has and will act diligently to ensure that any consumer request to be so removed or unsubscribed will be communicated promptly to GRP;
11.5 the Data contains nothing that is defamatory or indecent; racially or ethically insensitive;
11.5 the Data Owner’s Sites, operation of the Sites, and all other activities used to collect the Data will be in full compliance with all applicable laws and regulations and will not be performed in a fraudulent or deceptive manner;
11.6 it is not aware of any circumstances likely to give rise to breach of any privacy and data protection requirements in the future (including any security breach);
11.7 all Data Subjects relating to the Data have given their valid and explicit written consent or oral consent where such Data is collected by telephone (“Opt-in”) to the transfer of their Data by the Data Owner to GRP and to the processing of their personal data by GRP for the specified purpose. For the purpose of this clause a Specified Purpose shall mean the purpose explained in writing by the Data Owner to the Data Subject before such consent is obtained;
11.8 where Data has been collected by telephone, Data Owner shall save and store in reasonably accessible form a voice recording of all such Opt-ins obtained from the Data Subjects for a minimum period of  months after the consent has been so obtained. Data Owner agrees to provide GRP with such voice recordings within  working days upon receipt of GRP’s written request.
11.9 all Data is necessary, accurate and up-to-date; and
11.10 it is registered with all relevant data protection authorities to process all Data for the said Specified Purpose.
NO OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ADVERTISING PRODUCT, DATA MANAGEMENT SERVICES OR LICENSING, OR SMS MESSAGE DELIVERY SERVICES, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT. EACH PARTY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF THE SERVICE.
Indemnification.Data Owner’s Indemnity Obligations. Data Owner agrees to indemnify and hold GRP harmless from and against any and all third party claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys' fees and expenses, arising from or related to a breach of Data Owner's obligations under this Agreement, including the representations and warranties contained herein.
GRP’s Indemnity Obligations.GRP agrees to indemnify and hold Data Owner harmless from and against any and all third party claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys' fees and expenses, arising from or related to a breach of GRP’s obligations under this Agreement, including the representations and warranties contained herein.
Indemnity Procedures. If any action will be brought against either Party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other Party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's reasonable expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
Limitation of Liability. In the event any failure, technical or otherwise per this Agreement, the total liability of GRP and exclusive remedy of Data Owner shall be limited to the extension of the end of the Term specified in this Agreement until minimum or maximum Advertising delivery requirements, if any, set forth herein are delivered, or as the parties may mutually agree. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, LOST PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, EXCEPT IN CONNECTION WITH A THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS PROVIDED UNDER THIS AGREEMENT. GRP’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO ANY ADVERTISEMENT IS LIMITED TO THE AMOUNT RECEIVED BY GRP FROM AN ADVERTISER FOR THE ADVERTISEMENT GIVING RISE TO THE CLAIM.
Without limiting the foregoing, neither Party shall have liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, terrorism, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of a Party.
Publicity. All media releases by either Party or its agents relating to this Agreement shall be subject to the prior written approval of both Parties.
Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
Force Majeure. GRP shall not be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond GRP’s control (including without limitation, the failure of the GRP’s Advertisers or any other person to display or place an Advertisement).
Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, partner, employee, or joint venture of the other Party. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
Construction; Severability.This Agreement will be deemed to have been drafted by both Parties, and ambiguities will not be resolved against a Party because of rules of construction regarding the ambiguities of a drafter. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to this Agreement (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
Entire Agreement. This Agreement (including Exhibit A which is incorporated by reference) constitutes the entire and only agreement, and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the matters set forth in this Agreement. Neither Party will be bound by, and each Party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by such Party in any correspondence or other document, unless the Party to be bound specifically agrees to such provision(s) in writing signed by an authorized representative of such Party.
Amendment. No change, amendment, or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by both Parties
Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. If this document was delivered to Advertiser in an electronic Format, then Advertiser represents and warrants that it did not modify the document after its receipt and before its execution.
Governing Law; Jurisdiction and Venue. This Agreement, and all of its provisions, shall be governed by and construed in accordance with the laws of the State of New York, as well as consider all relevant English data protection laws, without regard to its conflict of laws provisions. The terms of the Uniform Commercial Code and the U.N. Convention on Contracts for the International Sale of Goods shall not apply. The parties consent to the exclusive jurisdiction and venue in the Federal and State courts of New York County, New York, and in the courts hearing appeals therefrom, for the resolution of any action based upon, arising out of, or relating to this Agreement.
Notice. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses (or at such other address for a Party as shall be specified by like notice):