WHEREAS, ProspectNow has developed an application (the “Service”) that allows third parties to view and access data from a database of multifamily and commercial property owners via the www.prospectnow.com website (the “website”) and
WHEREAS, Customer desires to utilize the Service to access certain data which is owned or licensed by ProspectNow (the “Data”), subject to the restrictions and limitations set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows.
SECTION 1. SERVICES.
1.1 SERVICE; LICENSE. Pursuant to the terms and conditions of this Agreement, ProspectNow grants Customer a non-exclusive, non-transferable, non-assignable, limited license to use the WEBSITE to query ProspectNow’s servers and access and use the Data residing on the servers (subject strictly to the terms and restrictions of this Agreement, including in Section 1.3, below). The foregoing license extends only to the number of unique users for the counties outlined in Exhibit C. The foregoing license shall terminate immediately upon any termination or expiration of this Agreement, including a termination by ProspectNow due to Customer’s breach. Customer shall be solely responsible for all costs associated with accessing the Data via the WEBSITE (e.g., internet connection costs, bandwidth costs). Such access may be accomplished via any electronic medium, including but not limited to the internet, intranets, portals, land-based lines, cable and wireless services.
1.2 PAYMENTS AND FEES. Customer agrees to pay ProspectNow for all services ordered in accordance with the payment schedule set forth in Exhibit B. Customer authorizes ProspectNow to debit the customers credit card for payments. Customer may not license any third parties the right to reproduce or otherwise utilize the WEBSITE or the DATA. Customer acknowledges and agrees that Customer shall be solely responsible for ensuring that any queries are effected by Customer in accordance with the restrictions outlined in Exhibit C. Each ProspectNow invoice is due and payable on receipt. Any amounts unpaid for thirty (30) days from the invoice date shall be subject to an interest charge of 1.5% per month. Failure to pay any amounts(s) owed when due may result in immediate discontinuance or suspension of the Service. Remedies for non payment past 30 days include, but are not limited to, legal action to collect the full amount of unpaid payments on the contract or submission of the customer’s information to collection agencies and credit reporting companies to collect the full unpaid amount of the contract which may result in damage to the customer’s credit score.
1.3 RESTRICTED USES. Unless explicitly allowed under Exhibit C or in the “LTRAC LLC SERVICE AGREEMENT”, Customer shall not:
(a) Copy, Reproduce, or Resell the Data
(b) Share unique user names or the data with other members of the customer’s organization that are not specified as users in Exhibit C.
(c) offer the Data via CD-ROM disc, optical disk, magnetic tape or via other physical media;
(d) further sell, license, or distribute the Data;
(e) use the Data in violation of any federal, state, or local law, rule, or regulation, including but not limited to laws regulating unsolicited (phone, fax, sms, email) advertising (e.g., the Telephone Consumer Protection Act, do-not call, CAN-SPAM), laws regulating privacy or credit information (e.g., the Fair Credit Reporting Act or other laws regulating consumer credit, the Health Insurance Portability and Accountability Act (HIPAA)).
(f) use the Data for purposes other than its own internal business purposes;
(g) use non-commercial phone records for marketing purposes
(h) use service to reverse engineer or compete with ProspectNow
(i) use real estate agent contact info for any marketing purposes or solicitation purposes other than End Users contacting an agent to make an offer on a property.
1.4 RESERVATION OF RIGHTS. Customer acknowledges and agrees that it has no rights to the Service, WEBSITE, or Data, except for the limited right to utilize the Service and WEBSITE (and access the Data) as set forth above, and during the Term (as defined below). ProspectNow expressly reserves all rights in the Service, WEBSITE, and Data including data that is contributed by the Customer�s end users to WEBSITE. The customer represents and warrants that any data added to the website by the customer does not violate the rights of any 3rd parties and the customer has full legal authority to do so. Nothing herein shall be construed to grant to Customer any rights in any trademarks or service marks of ProspectNow.
1.5 AVAILABILITY; SUPPORT. ProspectNow shall use commercially reasonable efforts to provide the Service to Customer twenty-four (24) hours a day, seven (7) days a week (subject to normal maintenance downtimes), pursuant to the terms and conditions provided herein. ProspectNow shall use commercially reasonable efforts to provide Customer support in accordance with its prevailing support policies.
SECTION 2. TERM & TERMINATION.
2.1 TERM. The term of the Agreement (the “Term”) shall begin on the Effective Date and continue as set forth in Exhibit A.
2.2 TERMINATION. Termination provisions shall be set forth in Exhibit A
2.3 SUSPENSION OF SERVICE. In the event ProspectNow cannot obtain, or loses the Data or rights to provide the Data to Customer, is required to suspend or terminate (or in ProspectNow’s opinion may be required to suspend or terminate) the Service by order of a regulatory agency having jurisdiction, or by reason of any self-regulatory agency rule, law, statute, or regulation, whether federal, state, or local, which may restrict provision of the Service and access of the Data, is threatened with a claim of infringement (or in ProspectNow’s opinion may be so threatened) with respect to the Service, or otherwise is unable to provide the Service, ProspectNow may terminate this Agreement with seven (7) days written (or e-mail) notice. Upon such termination ProspectNow will have no further liability to Customer (except to refund pro rata any pre-paid fees for the remainder off the term).
2.4 DEFAULT & TERMINATION. ProspectNow may immediately terminate this Agreement or temporarily suspend the Service (effective upon written or email notice), at any time, if (a) Customer is in violation of local, state or federal laws or regulations, or (b) Customer breaches any term in this Agreement.
2.5 SURVIVAL. Sections 1.3 and 1.4, and Section 3 shall survive the expiration or termination of this Agreement.
2.6 AGREEMENT MODIFICATIONS. Customer hereby agrees that ProspectNow may change, revise, or modify the terms and conditions of this Agreement at any time, in its sole discretion; provided that ProspectNow provides Customer written or email notice of such changes and Customer continues to use the Service after the date seven (7) days from the receipt of such notice (such continued use shall constitute acceptance of the new or revised terms). If Customer does not agree to such changes or modifications, it may terminate this Agreement with written/e-mail notice within said seven (7) day period as its sole and exclusive remedy and refund any pre paid fees for the remainder of the term on a pro rata basis.
SECTION 3. MISCELLANEOUS.
3.1 CONFIDENTIALITY. Customer shall not reveal to third parties any material non-public information learned by Customer in the course of utilizing the Service or the WEBSITE, including, but not limited to, rate schedules and the terms of this Agreement.
3.2 CUSTOMER MARKS. Customer hereby grants to ProspectNow a non-exclusive and limited license to use, reproduce, and display Customer’s trade names, logos and other trademarks and service marks (the “Customer Marks”) in connection with ProspectNow advertising, marketing and promotion of the Service. Further, at ProspectNow’s request, Customer will use reasonable efforts to provide ProspectNow with data and qualitative input about the application of the Service for use in marketing materials such as use cases, white papers and testimonials (the “Marketing Materials”) on ProspectNow operated Web sites or in similar print materials. Customer acknowledges and agrees that ProspectNow has all rights in such Marketing Materials, and may freely use and distribute such Marketing Materials. Customer additionally acknowledges that any unsolicited positive feedback Customer provides to ProspectNow, may be used by ProspectNow for inclusion in Marketing Materials (e.g., customer testimonials). Except as set forth herein, Customer retains all rights in the Customer Marks.
3.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROSPECTNOW SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, DATA, THE WEBSITE, AND ANY OTHER MATERIALS MADE AVAILABLE BY IT TO CUSTOMER, INLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF CUSTOMER IS ADVISED OF THE PURPOSE), WARRANTIES AGAINST INTELLECTUAL PROPERTY AND OTHER INFRINGEMENT AND THE IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE. PROSPECTNOW SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN EACH CASE, WITH RESPECT TO THE SERVICE, DATA, WEBSITE, OR ANY OTHER MATERIALS PROVIDED BY PROSPECTNOW AND ANY OTHER INFORMATION TECHNOLOGY, CONTENT, PRODUCTS OR SERVICES PROVIDED BY PROSPECTNOW UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
3.4 LIMITATION OF LIABILITY. PROSPECTNOW’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO, OR ARISING OUT OF THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT BY PROSPECTNOW IS SOLELY LIMITED TO THE AMOUNT CUSTOMER PAID DURING THE TWELVE (12) MONTH PERIOD PRIOR TO SUCH BREACH. PROSPECTNOW WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE DATA, WEBSITE, OR THE SERVICE IN ANY MANNER, INCLUDING LIABILITIES RESULTING FROM (1) THE USE OR THE INABILITY TO USE THE SERVICE OR MALFUNCTIONS IN THE SERVICE, INACCURACY OR INCOMPLETENESS OF THE UNDERLYING DATA; (2) THE COST OF PROCURING SUBSTITUTE SERVICES; (3) ANY SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF PROSPECTNOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
3.5 REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to ProspectNow that (1) it is authorized to enter into this Agreement, and the signatory signing this Agreement is authorized to bind Customer and make payments using the mechanism used; (2) Entry into this Agreement shall not violate any outstanding obligation Customer has to any third party; (3) Customer shall use the Service and the WEBSITE strictly in accordance with the limitations set forth in this Agreement, including in Section 1.3; (4) Customer has provided accurate contact information; and (5) Customer will ensure that its end users comply with the restrictions set forth in this Agreement (including Section 1.3) and are only allowed to access the Service subject to entry into terms and conditions containing any restrictions set forth herein (including Section 1.3).
3.6 INDEMNIFICATION. Customer shall indemnify, defend and hold harmless ProspectNow and any of their officers, affiliates, directors, shareholders, employees and agents, from and against any and all loss, costs damage assessments, injuries, expenses (including but not limited to reasonable attorneys’ fees and costs), claims and liabilities arising out of or incurred due to Customer’s: (1) breach of this Agreement, (2) misuse of the Service, (3) negligence, misconduct, misrepresentation to its customers/end users, and (4) failure to abide by the restrictions set forth in Section 1.3. Customer shall not, without the prior written consent of ProspectNow, settle, compromise or consent to the entry of any judgment that could impose any liability or obligation upon ProspectNow. If ProspectNow is threatened with suit or sued by a third party, ProspectNow may seek written assurances from Customer concerning Customer’s promise to indemnify Company; and failure to provide such assurances may be considered by ProspectNow to be a material breach of this Agreement. ProspectNow will have the right to participate in any defense by Customer of any indemnified claim, with counsel of ProspectNow’s choice at Customer’s expense.
3.7 ENTIRE AGREEMENT. This Agreement (including all Exhibits) contains the entire understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understanding, express or implied or written, among the parties. This Agreement cannot be modified or amended without the written consent of both parties.
3.8 GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the applicable U.S. federal law and the laws of the State of California without regard to choice of law provisions. Each party hereto (i) consents to and waives any objections to personal jurisdiction, service of process, and venue in the state and federal courts located in Santa Clara County, California, and (ii) agrees that any action or proceeding arising out of or related to this Agreement will be filed and prosecuted only the aforementioned courts. The most prevailing party in any legal action relate to this Agreement shall be entitled to its reasonable attorneys’ fees. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action brought by Customer against ProspectNow and arising out of or related to use of the Service, the WEBSITE, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
3.9 INDEPENDENT CONTRACTORS. ProspectNow and Customer are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture, franchise or agency relationship between ProspectNow and Customer. Neither party has any authority to enter into an agreement of any kind on behalf of the other party.
3.10 FORCE MAJEURE. Except with respect to payment obligations hereunder, neither party will be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Service, resulting directly or indirectly from acts of nature, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond each party’s reasonable control.
3.11 ASSIGNMENT. Customer may not assign, delegate, or transfer its rights and obligations under this Agreement to any third party (including but not limited to a successor-in-interest, or pursuant to a sale, merger, or other corporate transaction) without the express prior written consent of ProspectNow. Customer acknowledges that ProspectNow may assign this Agreement without Customer’s consent (a) in connection with the assignment, sale or transfer of at least a majority of ProspectNow’s assets or outstanding voting securities, and (b) to a successor-in-interest pursuant to a merger or other corporate combination. All the terms, provisions, and conditions of this Agreement shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and assigns.
3.12 OPPORTUNITY TO NEGOTIATE. Customer has had an opportunity to engage counsel of its choice, and to review, and negotiate all of the provisions of this Agreement. Accordingly, the Agreement shall be considered to be jointly drafted by the parties and not interpreted against either party.
3.13 EMAIL AND PHONE COMMUNICATIONS. Customer agrees from time to time that ProspectNow may send notifications via email, phone or mail to the customer and the customer agrees to receive these communications.
EXHIBIT A – TERM
ProspectNow may terminate this agreement at any time for any reason unless the customer has paid for the service in which case neither party shall have the right to terminate prior to the expiration of the subscription term outlined in the LTRAC LLC SERVICE AGREEMENT except as provided in section 2.3 . Upon termination, the customer shall cease to have access to the website and provided the customer does not have an outstanding balance owed, no further billings shall take place. No refunds will be processed for billings that occurred prior to the termination.
EXHIBIT B , PRICING
The access to the service shall be free of charge except as specified in the LTRAC LLC SERVICE AGREEMENT.
SCOPE OF USE / ADDITIONAL RESTRICTIONS
This Exhibit C sets forth the scope of use and additional restrictions with respect to Customer’s use of the Service and access of the Data. The scope of acceptable use set forth herein shall be subject to the limitations in Section 1.3 of the Agreement, and unless this Exhibit C specifically references provisions of Section 1.3 of the Agreement, the limitations of Section 1.3 shall take precedence over the scope of acceptable use set forth herein.
Number of Unique Users:
Except as specified in the LTRAC LLC SERVICE AGREEMENT, Access to the website will be restricted to the following number of unique user logins for the Customer only : 1.
Geographic and Data Field Restrictions:
Except as specified in the LTRAC LLC SERVICE AGREEMENT, Users will have access only to the available fields on the free service which typically include the property owner property address and company name and may change from time to time. All other fields will be blocked.
Export and Phone Number Usage Restrictions:
Except as specified in the LTRAC LLC SERVICE AGREEMENT, The customer shall not have access to any phone records or export features.
ProspectNow collects a limited amount of data directly from our users, subscribers and customers, as described in the next two sections of this Policy. We also license amd aggregate real estate data and transactional and property tax assessment information for use in the products we sell to customers, principally real estate professionals. Our privacy protections for licensed data, not collected by us from users or consumers, is described in the “Data Collected for use in ProspectNow Products” section of this Policy.
Collection of Information from our users and its use
When you sign up with ProspectNow on-line, either in the form of a subscription to a ProspectNow on-line service, by requesting additional information about our services on our website, or by signing up to participate in a ProspectNow survey, event, contest or sweepstakes on-line, all users are asked to fill out a registration form. Registration information includes name, phone number, role, company, password, credit card information and email. All registration information is kept private and secure, and is used only for purposes of maintaining subscription accounts, billing, and to contact users with information regarding our services, webinars, surveys, contests or similar events. Credit card information is not stored with ProspectNow and is communicated to our 3rd party billing provider, Stripe. We do not sell or rent this information to any third party, however we may share this information with 3rd parties that support internal operations at ProspectNow, including but not limited to marketing automation and CRM systems. ProspectNow employs a secure e-mail hosting service to deliver e-mail and communications.
By completing any of our on-line registration processes, you are specifically agreeing to receive communication from us by e-mail, postal mail, SMS and by telephone.
In addition to the personal information added by users in this registration process, other information collected automatically from website visitors will include (and is not limited to) IP address, browser type, time and date of use, and any activity performed while on our website or using our service. By using our website and/or by registering with ProspectNow for informational, subscription service purposes or any other on-line purposes, you consent to the collection and use of the information described herein by ProspectNow.
PLEASE NOTE: Your registration information and any information collected by ProspectNow when you visit our website is neither added to the ProspectNow Database nor can such information be be accessed by customers of a ProspectNow product.
Personal Information of our users and its use
ProspectNow will not sell, rent, or license the personally identifiable information (such as name, email, mail address, billing address etc.) that you submit in your registration for our services or your registration for inquiries into our services. In order to make ProspectNow more useful to customers, we do collect and analyze aggregated, non-personal, statistical information about subscribers and visitors. From time to time we share this information in aggregate and de-identified form only, with third parties. This information reveals nothing about individual users and visitors to the website and is only used to communicate demographic and behavioral understandings of our customers and visitors internally and to potential advertisers, business partners and investors.
Data Collected for use in ProspectNow Products
ProspectNow licenses and aggregates data to provide to its customers for use our in our products. These customers are most commonly real estate professionals.
Although not legally mandated until January 1, 2020, ProspectNow is already fully compliant with the recently enacted California Consumer Privacy Act (CCPA). The vast majority of our information about non-business properties and individual homeowners has been obtained from public records sources, such as mortgage liens and real estate tax assessments, that is not considered “personal information” under (and is therefore not subject to) the CCPA. However, ProspectNow does license and collect phone numbers and email addresses on consumers information which is subject to the CCPA. In the interest of transparency and to implement our commitment to consumer privacy, ProspectNow applies the CCPA’s requirements to ALL our residential real estate database and website registration content, meaning that California residents enjoy the benefits of CCPA rights from ProspectNow even though we are not obligated to do so on all of our data.
The CCPA includes three important rights that ProspectNow voluntarily offers to California consumers:
Opt-Out. California consumers can request that ProspectNow not sell personal information about them to third parties. Known as the “right to opt-out,” such a request may be made by sending a written opt-out request by e-mail to privacy@ProspectNow.com, by phoning us toll-free at 888-956-9998 or by using the “Do Not Sell My Personal Information” link and page of our website.
We follow generally accepted industry standards to protect the information collected on or through our website and in our services. While we use the latest security technologies and tools, it should be noted that no method of electronic storage or transmission can guarantee absolute data security.
When you enter sensitive personal information (such as credit card information) into our system, such information is sent to our payment processor in an encrypted form (with Secure Socket Layer (SSL) technology) and not stored on our servers. This information will not be sold or shared with any third party other than the trusted transaction processing partner that we use to complete any on-line financial transaction.
While we strive to protect your personal information, ProspectNow cannot ensure or warrant the security of any data or content you transmit to us, and you do so at your own risk. In the event of a breach of the confidentiality or security of your personal information, we will notify you as soon as possible so you can take appropriate protective steps and to inform you of the steps that ProspectNow is taking with respect to such breach.
Communication with our subscribers
We communicate with subscribers to our services through e-mail, SMS, phone and other means of electronic communication. By filling out an online form, you are consenting to this communication.
Users may choose to opt out of receiving e-mail communications from ProspectNow and clear opt-out instructions are included in e-mail messages, or you can simply call us at 1-888-956-9998. However, we periodically communicate information to active customers about customer accounts, renewal notices and information about service changes in order to ensure the integrity of our services and such communications cannot be terminated by subscribers unless they cease to subscribe to the services.
Links to other sites
We include links to other websites that are not owned or controlled by us and we are not responsible for the privacy practices of those websites. This policy applies to information collected by us through the website or in the provision of the services we offer.
The ProspectNow Database and Ability to Opt Out
The ProspectNow Database contains millions of property records and company profiles. The ProspectNow Database has been created by ProspectNow in the following ways: 1) by way of public records aggregationg, and 2) by way of licensing of business information from third-party data providers. We recognize that publishing public information about real property necessarily involves the publication of information about real estate properties that might be used to associate public records with individual people. The information provided on this site is protected by the Freedom of Information Act, the corollary state laws, and the First Amendment; however, we oppose the use of the information on this site to invade the privacy of anyone. As a courtesy, not limited to California residents, we permit limited suppression of personal information for owner-occupied homeowners with regard to their primary residence. If you wish to have your personal information removed from this website and our database or you have any other concerns with regard to content on the website, contact us at firstname.lastname@example.org and you will receive a response within 48 hrs. You will need to provide documented proof that you are the person in question and that you live at the property in question, and we will take steps to remove references to your information on the site. Owners of commercial and investment property such as multi-family apartment buildings, rental homes, office or retail buildings are not included in this policy. As our site is updated regularly, we cannot promise than any such changes will be permanent.
Phone number data is the responsibility of your telephone service provider or the public agency which provided it. If you wish to have a commercial phone number removed from the site, contact your provider or the appropriate agency to have your phone number de-listed or removed. It may take three to six months for this change to appear on the site. If the phone number you’d like to have removed is a number for your personal residence associated with a property in our database, enter phone number below along with proof of residency at the property in question, and we will provide a response within 48 hrs.
ProspectNow is a business information site providing contact information on working professionals. ProspectNow is not targeted, intended or expected to be of use to children. User provided contributions of content or contact information regarding or about children are expressly prohibited.
Attn: Customer Support
201 Main st #100
Los Altos, Ca 94022 Phone: 888-956-9998
Customer Support hours: between 8am and 5pm Pacific Standard Time.
Modification of this policy
Why We Don’t Offer Refunds
ProspectNow.com offers the right to use its Services for free for potential customers to have adequate opportunity to assess the value of these services prior to purchasing a license/subscription.
Unlike physical goods, electronically distributed software and deliverables can be duplicated. Once a purchase has been made, it is unfortunately not possible for us to recall all copies/deliverables (such as downloaded files). Therefore, ProspectNow does not accept refunds, returns, or exchanges. No refunds will be given, except in the company’s sole and absolute discretion.
ProspectNow Master Service Agreement for Digital Marketing
This Agreement is entered into between LTRAC, LLC dba ProspectNow (“ProspectNow”), and the end user or entity accessing the ProspectNow Service and Website (“Customer”), and is effective (the “Effective Date”) upon the creation of an account or your initial login with an account to the website.
WHEREAS, ProspectNow provides an on-line Internet-based advertising service (the “Service”);
WHEREAS, Customer wishes to retain ProspectNow to deliver Internet-based advertisement impressions through the Service as part of one or more advertising campaigns;
The parties hereto agree as follows:
1. SCOPE OF SERVICES AND PARTY OBLIGATIONS
1.1 ProspectNow shall use reasonable efforts to conduct on-line Internet advertising campaigns for Customer as set forth in each Order.
1.2 Customer shall submit to ProspectNow by electronic mail addressed to the Customer’s ProspectNow designated sales contact a proposed “Order” in the form set forth in Attachment A or as negotiated with ProspectNow. For each proposed Order received by ProspectNow, ProspectNow shall approve or reject such proposed Order, in ProspectNow’s sole and absolute discretion, by written notice (including by electronic mail) of acceptance to Customer at the address specified in each such Order. Upon approval of any Order by ProspectNow, such Order shall become part of this Agreement.
1.3 Customer has been informed and understands that scheduled or expected advertising impressions under any or all Orders may not be delivered or may be delayed due to various reasons, including but not limited to disruptions in the Service caused by limited availability of inventory, power outages, Acts of God, equipment malfunction, Service maintenance or upgrades, third-party vendor error, or ProspectNow error. In the event of such Service interruptions or cancellations, if applicable, Customer shall receive an appropriate refund or credit to its account with respect to any pre-payments for impressions not delivered. Customer is not entitled to any other compensation, consequential damages or other payment on account of any service interruption.
1.4 No Exclusivity of ProspectNow’s Services. Customer acknowledges that, unless expressly specified in an Order, Customer has no exclusivity with respect to the Service, any target population of individuals, geographical territory, campaign, product market, or otherwise, and that ProspectNow at all times may provide services to any third-party, including competitors of Customer. ProspectNow may receive creative materials or target lists from other customers that are similar to the creative or target lists provided by Customer, and that nothing in this Agreement or otherwise prevents ProspectNow from utilizing such creative materials or target lists or prevents ProspectNow from conducting campaigns on behalf of other clients that are similar to Customer’s campaigns, utilize similar creative material, or target similar populations of individuals.
2.1 All Creatives are subject to ProspectNow’s approval, to be exercised at ProspectNow’s sole discretion. Customer shall provide ProspectNow Creatives for any Order at least two business days before ProspectNow is to begin using the Creative. Creatives shall be in the format specified by ProspectNow to the customer. ProspectNow shall use Customer’s Creatives solely with respect to Customer’s Orders or as otherwise directed by Customer. ProspectNow will destroy Customer’s Creatives within thirty (30) days of the completion of any Order.
2.2 CUSTOMER’S WARRANTY: Customer is solely responsible for ensuring that it has the right to use all images and content in any Creative. Customer represents and warrants that the Creatives and any other material, image, file, or document Customer transmits to ProspectNow does not contain any untrue, defamatory, harmful, abusive, obscene, or pornographic materials, is in compliance with all applicable laws, statutes and regulations, and does not infringe upon the rights of any other party, including but not limited to copyrights, trademarks, privacy rights, moral rights, trade secrets, patents and any other right. Customer agrees to indemnify ProspectNow, as further set forth in Section 15 below, and hold ProspectNow harmless, to the fullest extent of the law, for all costs incurred due to any violation or alleged violation by Customer of this sub-paragraph or any costs or liability incurred by ProspectNow by reason of the Creatives or data provided to ProspectNow by Customer.
3. PROSPECTNOW SOURCED TARGETING LISTS
3.1 ProspectNow will be the source of the targeting list as generated by the property address and/or filters provided by the Customer to ProspectNow though the Service. ProspectNow represents and warrants it has the rights to use the ProspectNow targeting list for the purposes herein. The customer shall not have access to the ProspectNow targeting list unless the Customer is a subscriber to the ProspectNow data service as evidenced by a separate subscription agreement in which case the access to the targeting list shall be governed by that agreement. Should customer choose to purchase access to the ProspectNow data service to obtain the targeting list, customer agrees to be governed by that agreement and pay any required fees.
4. FEES, INVOICES AND PAYMENTS.
4.1 Customer agrees to pay to ProspectNow, for each order submited all fees, recurring and non-recurring charges, applicable taxes, and other costs as set forth on each Order or as provided herein, invoiced on execution of order. ProspectNow shall charge the customers credit card upon the submission of each order. However, the Customer is not obligated to submit an order and may use the customer’s website at no charge until an order is submitted.
4.2 All past due amounts shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.
4.2.1. ProspectNow may, in its sole discretion suspend any or all of Customer’s Orders until all past-due amounts are paid.
4.2.2. ProspectNow may, in its sole discretion, require pre-payment of any or all amounts for future services.
4.3 All charges and payments under the Agreement are in United States currency. Payment shall be made to ProspectNow in the form of check, bank wire, or credit card or other immediately accessible form of payment. Unless otherwise specified, any payments received from Customer shall be applied to the earliest-incurred unpaid fees.
4.4 Payments shall be made by the customers credit card
4.5 Defaulted Payments. Customer shall reimburse ProspectNow for all costs, fees, and penalties associated with collecting any unpaid or overdue fees, or for any payment that is rejected by any bank for insufficient funds or is otherwise uncollectible by ProspectNow (a “Defaulted Payment”), including all of ProspectNow’s costs and expenses incurred in collection efforts, including attorneys’ fees actually incurred.
5.1 Customer shall be responsible for and pay all federal, state, and local taxes, fees, charges, surcharges or similar exactions imposed on the Services and/or products that are the subject of this Agreement including but not limited to state and local sales and use taxes, telecommunications taxes, federal and state universal service fund fees and/or state and local regulatory fees to the extent applicable.
6. NO GUARANTEE OF RESULTS
6.1 Customer acknowledges that ProspectNow is not making and has not made any warranty, representation or guarantee of the success of the Service or any Order.
7. TERM AND TERMINATION
7.1 Term. The initial term under this Agreement shall be one (1) months. Unless terminated earlier by either Party, the term of this Agreement shall renew for an additional one (1) months at the end of the initial term and every successive one (1) month term thereafter, until terminated by either Party in accordance with this Agreement.
7.2 Termination of this Master Agreement. Except as otherwise provided for in this Agreement:
7.2.1. Either Party may terminate this Agreement as of the end of any annual term by written notice provided not less than thirty (30) days prior to the expiration of such term.
7.2.2. Either Party may terminate this Agreement upon thirty (30) days written notice of a material breach by the other Party, provided that the other Party has not cured the breach, if possible, prior to the expiration of thirty (30) days.
7.2.3. Notwithstanding the termination of this Master Agreement, Customer shall remain liable for and shall pay any and all incurred fees in connection with any Order(s) whether incurred as of the date of termination or whether incurred subsequent to termination (a “Hold Over Period”) as set forth in Section 8.2.4.
7.2.4. In the event any Order is continuing at the time this Agreement terminates, such Order shall continue and ProspectNow shall provide Services under that Order until the Order is cancelled pursuant to this Agreement or the Order expires pursuant to its terms. During the Hold Over Period, the terms of this Master Agreement shall remain in full force and effect with respect to such Order.
7.3 Termination of Orders by Customer. Except as otherwise provided for in this Agreement or an Order:
7.3.1. Customer may terminate one or more Orders at any time upon five (5) days written notice to ProspectNow. Orders shall automatically renew every 30 days unless terminated as defined above. In the event there are unused impressions, the campaign will continue to run until until unused impressions are consumed at no additional charge.
7.4 Termination of Orders by ProspectNow: Except as otherwise provided for in this Agreement or an Order, ProspectNow may terminate one or more Orders:
7.4.1. Upon thirty (30) days written notice of Customer’s material breach, provided that such material breach is not cured within such thirty (30) days of receipt of such notice; (P
7.4.2. Immediately in the event that Customer liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for general relief from its debtors, initiates any proceeding seeking general protection from its creditors, is removed or delisted from a trading exchange or its long term debt is downgraded more than two levels from its rating as of the effective date of this Agreement.
7.4.3. Immediately in the event ProspectNow determines, in its sole discretion, that the provision of Services under one or more Orders violates any law, regulation or statute, or any third-party’s rights, including but not limited to copyright, patent, trade secret, contract, privacy rights or ad network regulations.
7.5 Upon the termination or expiration of this Agreement or any Order(s) hereunder:
7.5.1. ProspectNow’s obligations under this Agreement or the Order(s), as applicable, shall cease, except as set forth herein.
7.5.2. ProspectNow shall provide Customer with a final invoice for all fees incurred as of the date of the termination, and Customer promptly shall pay all amounts due and owing to ProspectNow.
7.5.3. Customer promptly shall, within seven (7) days return to ProspectNow any materials, documentation, images, software or equipment ProspectNow may have provided to Customer in connection with this Agreement, including any copies thereof, and delete any passwords, identifiers or other similar information used by Customer to access the Service, if any.
7.5.4. ProspectNow shall within thirty (30) days destroy all applicable Customer Creatives and customer provided Targeting Lists .
7.6 Survival of Certain Provisions Upon Termination. The provisions of Sections 6, 14, 15, 16, 17, 18, 19 and any provision concerning any Customer representation, warranty or agreement to indemnify ProspectNow shall survive termination or expiration of this Agreement.
8. REFUND POLICY
8.1 Customer expressly acknowledges that Customer is not and will not be entitled to a refund or credit of pre-paid amounts for any reason, other than as set forth this Agreement or any Order.
8.2 In the event this Agreement or any Order (s) is terminated due to ProspectNow’s material breach, any of Customer’s unused pre-paid funds or unused credits shall be applied to Customer’s outstanding invoice and the remainder, if any, returned to Customer.
9. MONITORING, EQUIPMENT UPGRADES AND MODIFICATIONS.
9.1 ProspectNow has the right, but not the obligation, to upgrade, modify and enhance the Service (including ProspectNow’s software, hardware, or business processes) and take any action that ProspectNow deems appropriate to protect the Service and its facilities. ProspectNow will notify Customer of any change to Service that materially affects ProspectNow’s ability to effectuate one or more Orders, in which case Customer may, within the thirty (30) day period following the date of such notice, terminate any affected Order, by written notice to ProspectNow, without penalty.
10. CUSTOMER REPRESENTATIONS AND WARRANTIES
10.1 In addition to any Customer representations and warranties set forth elsewhere in this Agreement, Customer represents and warrants that:
10.1.1. Customer has the full and complete authority to enter into this Agreement and perform its obligations hereunder.
10.1.2. Customer’s performance of its obligations under this Agreement will not violate or breach any other agreement to which Customer is a party or is bound.
10.1.3. Customer’s provision of Creatives, Targeting Lists or other data to ProspectNow pursuant to this Agreement will not infringe on any United States patent, copyright or other intellectual property violate any right held by a third-party or violate any applicable local, state or federal laws.
10.1.4. In the event the Customer is using any listing data as supplied by ProspectNow for it’s creative, Customer represents and Warrants that it is the listing agent and owner of the the listing information, including but not limited to images and property information.
11. REGULATORY AND LEGAL CHANGES, TARIFFS.
11.1 In the event of any change in applicable law, regulation, decision, rule or order, including without limitation any government or quasi-government-imposed charges that increases the costs of ProspectNow’s delivery of service to Customer, Customer acknowledges and agrees that ProspectNow may pass through to Customer any such increased fees or costs, but only to the extent of the actual increase, provided that (a) ProspectNow notifies Customer at least thirty (30) days in advance of the increase and (b) Customer does not elect to cancel any affected order or service.
11.2 In the event that ProspectNow is required to file tariffs or rate schedules with a regulatory agency or otherwise publish its rates in accordance with regulatory agency rules or policies respecting the delivery of the Service or any portion thereof, and ProspectNow is required under applicable law to apply those rates to Customer’s purchase of Service under this Agreement, the terms set forth in the applicable tariff or rate schedule shall govern ProspectNow’s delivery of, and Customer’s use or consumption of the Service, provided that (a) ProspectNow notifies Customer at least thirty (30) days in advance of the increase and (b) Customer does not elect to cancel any affected order or service.
11.3 If ProspectNow determines, in its sole discretion, that offering or providing the Service, or any part thereof, has become impracticable for legal or regulatory reasons or other circumstances, ProspectNow may terminate this Agreement as to any or all of the Service and may terminate any affected Orders, without liability, by giving Customer thirty (30) days prior written notice or any such notice as is required by law or regulation applicable to such determination
12. DISCLAIMER OF WARRANTY
12.1 TO THE EXTENT PERMITTED BY LAW, CUSTOMER ASSUMES FULL RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY PROSPECTNOW, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT PROSPECTNOW’S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THIS AGREEMENT AND PROSPECTNOW DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION OR DATA ACCURACY.
13. LIMITATION OF LIABILITY
13.1 Except for the indemnification obligations set forth in this Agreement, in no event shall either Party be liable to the other Party for any incidental, indirect, consequential, special or punitive damages arising out of or relating to this Agreement, any Order or any service provided hereunder, regardless of whether such Party had been advised of the possibility of such damages, including, but not limited to, claims for lost revenue, loss of potential clients or loss of potential business opportunity. In no event shall ProspectNow’s affiliates, third party service providers or suppliers have any liability to Customer hereunder. ProspectNow shall not be responsible for any losses or damages arising as a result of the unavailability of the Service.
13.2 Except for the indemnification obligations set forth in this Agreement, ProspectNow’s aggregate liability to the Customer, for any reason and all causes of action arising out of or relating to this Agreement (including, but not limited to, contract, tort (including negligence) and strict product liability) shall be limited to the fees paid or owed by Customer under the Order that is the subject matter of the claim in the six (6) months preceding the date the claim arises.
13.3 Except for the indemnification obligations set forth in this Agreement, Customer’s aggregate liability to ProspectNow, for any reason and all causes of action arising out of or relating to this Agreement (including, but not limited to, contract, tort (including negligence) and strict product liability) shall be limited to the greater of (a) the fees paid or owed by Customer under the Order(s) that is the subject matter of the claim in the six (6) months preceding the date the claim arises, or (b) the total fees, penalties, and other charges due to ProspectNow at the time of the judgment, ruling or other finding of liability.
14.2 ProspectNow agrees to indemnify, defend and hold harmless Customer, and any and all of its subsidiaries and affiliates and their respective past and present officers, directors, managers, agents and representatives and employees (collectively “Customer Indemnitees”), from and against any and all third party claims, actions, suits, and proceedings which may at any time be brought against the Customer Indemnitees as well as from and against all related liabilities, damages, judgments, settlements, fines, penalties, costs or expenses (including but not limited to reasonable attorneys’ fees and costs or expenses of investigating or defending any actions or threatened actions) suffered or incurred by the Customer Indemnitees arising out of, incident or relating to any claim based on the technology used by ProspectNow’s IP targeting Service or products or ProspectNow’s actual or alleged (i) breach of any term, condition, representation, or warranty of this Agreement; (ii) violation of any applicable law, rule or regulation; and (iii) violation of any rights of another person or entity, including without limitation any Intellectual Property Rights or rights of privacy, provided that ProspectNow shall not have any obligation to indemnify Customer Indemnitees insofar as the actual or threatened claim arises out of any act or omission by a Customer Indemnitee, including but not limited to, with respect to any Creative or Targeting List.
15. INTELLECTUAL PROPERTY RIGHTS, NO TRANSFER OF TITLE
15.1 ProspectNow owns all right, title, and interest in all intellectual property constituting, delivered through or otherwise associated with Service, including ProspectNow targeting lists, predictive analytics technology, and Service features, including implied licenses. All materials including, but not limited to, any documents, data, software, and information provided by ProspectNow to Customer, any identifiers or passwords used to access the Service or otherwise provided by ProspectNow to Customer, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto (collectively, “ProspectNow Proprietary Information”), used by ProspectNow in connection with the Service or to provide services under this Agreement shall remain the sole and exclusive property of ProspectNow or its suppliers.
15.2 Customer shall not acquire any interest in the Service or ProspectNow Proprietary Information, by this Agreement or by virtue of the payments provided for herein. Customer may use ProspectNow Proprietary Information, as permitted by ProspectNow, solely in connection with the effectuation of Orders hereunder. Customer may not disassemble, decompile, reverse engineer, reproduce, modify or distribute the ProspectNow Materials, in whole or in part, or use them for the benefit of any third party. All rights in the ProspectNow Proprietary Information are reserved to ProspectNow. Customer shall not open, alter, misuse, tamper with or remove the ProspectNow equipment that may be provided by ProspectNow as and where installed by ProspectNow, and shall not remove any markings or labels from such equipment indicating ProspectNow (or its suppliers) ownership or serial numbers.
16.1 Confidential Information shall mean any information relating to or disclosed in the course of the Agreement, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing Party, including, but not limited to, technical processes and formulas, proprietary technology, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data. Confidential Information includes ProspectNow Proprietary Information. “Confidential Information” shall not include information (a) already lawfully known to or independently developed by the receiving Party without the use of Confidential Information of the disclosing Party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party not under any obligation to the disclosing Party. Except as specifically set forth herein, this Agreement does not: (i) restrict either Party from developing new products, improving existing products, or marketing any new, improved or existing products, provided that, the Party does not utilize the Confidential Information of the other Party in doing so; or (ii) commit either Party to disclose any particular information, or to develop, make, use, buy, sell, or otherwise dispose of any existing or future products, or to favor or recommend any product or service of the other.
16.2 Customer agrees to maintain in confidence, not to disclose to third parties, or otherwise use, except for such use as is expressly permitted herein, any ProspectNow Proprietary Information, ProspectNow Confidential Information or other information provided by ProspectNow to Customer pursuant to this Agreement or in connection with any Order.
16.3 In the event Customer, or ProspectNow is obligated by law, through proper service of a subpoena, interrogatory, request for documents, civil investigative demand, court proceeding or similar process, to disclose the other Parties’ Confidential Information, said Party shall provide prompt written notice to the other Party, along with a copy of such demand, and the other Party may, in its discretion and at its sole expense, seek to obtain a protective order or other appropriate remedy to protect against such disclosure, provided that if such demand is made due to any act or omission of the notifying Party, said Party shall reimburse the other Party for such costs and expenses, including attorneys’ fees actually incurred in seeking the protective order. The Parties agree to reasonably cooperate with the other Party’s efforts to obtain such protective order.
17. APPLICABLE LAW
17.1 This Agreement, including any disputes over its terms, shall be governed by the laws of the state of California, without regard to conflicts of law.
18. ARBITRATION AND CLAIMS FOR NON-PAYMENT OF FEES
18.1 Except with respect to any claims by ProspectNow for unpaid fees or Default Payments, the Parties hereto agree, irrevocably, to submit any dispute arising under or concerning this Agreement or the Service to binding arbitration administered by the American Arbitration Association (“AAA”) and pursuant to the Commercial Rules thereof. No claim by ProspectNow against Customer for unpaid fees or Default Payments shall be submitted to arbitration, whether individually or as part of a larger proceedings, and Customer shall not assert the pendency or possible pendency of any arbitration as a defense to payment of any fees or Default Payment hereunder.
18.2 With respect to any unpaid fees or Defaulted Payment, ProspectNow may bring a civil action against Customer to collect such payment. The Parties agree to submit the dispute to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California, and the Parties agree to submit to the personal jurisdiction of said court and to waive any objection to venue lying with said court.
18.3 To the extent permitted by law, before either Party may commence an arbitration with respect to a dispute involving any aspect of this Agreement, such Party shall provide written notice to the other Party for the purpose of resolving the dispute in good faith. If the dispute is not resolved within sixty (60) days after the initial notice, then a Party may proceed in accordance with the following.
18.4 Notice of demand for an arbitration hearing shall be in writing and properly served upon the parties to this Agreement. Arbitration hearings shall be held in Louisville, Kentucky, or at a location agreeable to the Parties.
18.5 All costs of the Arbitration and the AAA shall be borne equally by both Parties to this Agreement, regardless of the final decision. Each party shall bear its own costs, including attorneys’ fees, arising out of any dispute between the parties concerning this Agreement. Any Panel constituted to hear and decide a dispute between the Parties shall not be empowered to award attorneys’ fees as part of any award.
19. INTERPRETATION AND ENFORCEABILITY
19.1 The language of the Agreement shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against any party, regardless of who drafted the Agreement or was primarily responsible for the drafting of any language contained herein. Each party waives the application of any law, regulation, doctrine, holding or rule of construction that ambiguities in an agreement will be construed against the drafter. Each party represents that they have had the opportunity to and did retain independent counsel to review this Agreement prior to execution.
19.2 Should any Court or Panel find any provision to be unenforceable or contrary to public policy, then such offensive provision shall be deemed stricken and the remainder of the Agreement shall nevertheless remain in full force and effect. The Parties shall then negotiate in good faith in an effort to replace the stricken provision with an enforceable provision that conforms to the Parties’ intent.
20. OTHER REMEDIES; SPECIFIC PERFORMANCE.
20.1 Any and all remedies herein expressly conferred upon a party will be deemed cumulative and not exclusive of any other remedy conferred hereby or available in law or equity, and the exercise by a party of one remedy will not preclude the party from exercising any other remedy. Nothing in this Agreement is or will be deemed to be a waiver of the right to obtain specific performance or injunctive relief. Customer acknowledges Customer’s failure to perform any provision of this Agreement according to its terms or Customer’s breach of any warranty will result in irreparable damage to ProspectNow and, accordingly, ProspectNow will be entitled to seek, at its discretion, and obtain injunctive relief preventing breaches of this Agreement or to enforce specifically the terms of the Agreement, in addition to any other remedy to which ProspectNow is entitled.
21. FORCE MAJEURE.
21.1 Notwithstanding anything to the contrary contained herein, a Party shall have no liability to the other hereunder due to circumstances beyond its control, including, but not limited to, acts of God, terrorism, flood, fiber cuts, natural disaster, regulation or governmental acts, fire, power surges or outages, civil disturbance, weather, or any unauthorized access to or destruction or modification of the Service, in whole or in part (each a “Force Majeure Event”). Notwithstanding anything to the contrary herein, Customer may terminate the affected Order(s) in its entirety and without penalty if a Force Majeure Event continues for more than ten (10) consecutive days and prevents ProspectNow from delivering the Service subject to such Order(s).
22. NO AGENCY, JOINT VENTURE OR OTHER RELATIONSHIP
22.1 The parties acknowledge that they will not hold themselves out as an agent, partner or co-venturer of the other and that this Agreement is not intended and does not create an agency, partnership, joint venture or any other type of relationship except the contract relationships established hereby.
22.2 The parties acknowledge that this Agreement does not create a fiduciary relationship between the parties.
23. NON-ASSIGNABILITY; TRANSFERRING OF CUSTOMER ACCOUNT(S) ON THE SERVICE
23.1 Either party may assign its rights and obligations under this Agreement including, without limitation, in whole or in part, to any affiliate without the prior written approval of or notice to the other party. The parties understand and agree that, regardless of any such assignment, the rights and obligations of the party herein may accrue to, or be fulfilled by, any affiliate, as well as by the party and/or its subcontractors and vendors.
24. FAILURE TO EXERCISE RIGHTS
24.1 Either Party’s failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
25.1 Except with respect to ProspectNow’s notice of acceptance of an Order, any notice, approval or disapproval, consent, request, demand or other communications under this Agreement (each a “Notice”), including any change to this Section, shall be in writing and shall be given (i) by hand delivery, (ii) by nationally recognized courier service; or (iii) by prepaid certified mail, to the attention of the person listed below at the addresses set forth below, in addition to delivery by electronic mail as noted. Each Notice shall be effective (a) if delivered by hand or by nationally recognized courier service, when delivered at the address specified in this Section and (b) if given by certified mail by a signed return receipt:
201 Main St #100, Los Altos, Ca 94022
25.2 Any Notice required to be made to Customer under this Agreement shall be sent to
26. ENTIRE AGREEMENT, NO RELIANCE
26.1 This Agreement and any Orders attached hereto constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, and representations, both written and oral, among the Parties with respect to the subject matter hereof. Each Party acknowledges that in making its decision to enter in this Agreement it is not relying upon any representation, written or oral, not set forth in this Agreement. This Agreement is solely for the benefit of the signatories to it; there are no third party beneficiaries to this Agreement (except for those third party indemnitees specified in Section 15).
27.1 This Agreement shall be required to be accepted by the Customer to use or access the Service. If you do not agree to these terms, do not access the service. All other ProspectNow Terms of Service and Privacy Policies as published on the website shall apply.
ATTACHMENT A –
Orders may be submitted online at ProspectNow.com by entering credit card billing information and submitting the order on the digital marketing service page. The order shall contain the approved creative by the customer, the number of impressions the customer would like to purchase, and the address for the area to target the delivery impressions to. ProspectNow shall send a receipt of the summary of the order and shall have the right to approve or disapprove of the order. Once the order is approved, ProspectNow shall commence the delivery of the impressions on behalf of the customer.
Orders will auto renew every 30 days unless canceled in writing by the customer prior to the renewal date.