THESE CONDITIONS OF SERVICE (the “Conditions”) are an integrated agreement between Customer and Company consisting of these Conditions, the terms contained in the Purchase Order issued by Company to Customer and referencing these Conditions (the “Terms”), any agreement(s) entered into between Customer and Company and any attachments, instructions, or requirements appurtenant to any of the foregoing (each of the foregoing comprising this agreement and referred to herein as the “Agreement”). This Agreement is binding with respect to all business conducted between Customer and Company and applies to and controls all agreements related to the provision of services by Company to Customer.
1. Definitions. Any capitalized term used in this Agreement but not otherwise defined shall have the meaning set forth below:
1.1. “Company” means NMS Data, Inc., a California corporation d/b/a Neilson Marketing Services.
1.2. “Confidential Information” means confidential, proprietary or non-public information regarding the Company or its business, whether or not reduced to writing or marked as confidential, proprietary or non-public. Confidential Information shall specifically include any and all information as to the Company’s proprietary designs, products and services, any portion thereof and any improvements, innovations, additions, accretions, changes, alterations or modifications thereto of any kind or nature whatsoever. Confidential Information also includes, but is not limited to, the following types of information and other information of a similar nature: works, discoveries, trade secrets, ideas, concepts, designs, personal contractual relationships, projects, courses of dealing, drawings, specifications, improvement, inventions, original works of authorship relating to the Company (including manuals), building and plan designs, techniques, models, data, documentation, diagrams, flow charts, research, development, processes, formulae, computer systems, data, algorithms, source codes, object codes, html codes and scripts, procedures, methodologies, “know-how,” marketing techniques and materials, marketing and development plans, actual and potential customer and vendor names and lists, lead lists, and other information related to customers and vendors, price lists, pricing policies, methods of conducting and obtaining business, and financial information. Confidential Information also includes any information described herein which the Company obtains from a third party and which the Company treats as proprietary or confidential, whether or not owned by or developed by the Company. Confidential Information shall not, however, include: (i) any information that is already in the possession of Customer at the time of disclosure by the Company by reasons unrelated to Customer’s relationship with the Company as shown by Customer’s files and records existing prior to the time of disclosure by the Company; (ii) any information that is independently developed by Customer outside the scope of and unrelated to Customer’s relationship with the Company and without reference to or reliance on any Confidential Information, as shown by Customer’s files and records prior to the time of disclosure by the Company; (iii) any information that is at any time provided to Customer by a third party without any breach of Customer’s obligations hereunder or any breach of such third party’s obligations to the Company or to any other party; or (iv) information and business relationships subsequently developed by Customer through Customer’s use of Data in accordance with the terms hereof.
1.3. “Customer” means the Person that orders the Services and is responsible for the payment of fees under, and compliance with, this Agreement.
1.4. “Effective Date” means the day that is the earlier of Customer: (i) returning to the Company a signed copy of the Terms; or (ii) tendering payment to Company in accordance with the Terms.
1.5. “Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority, or other entity.
1.6. “Purchase Order” means the written contract entered into by and among Customer and Company specifying the terms and conditions of the transaction between Customer and Company.
2. Company Services. Company has compiled and maintains a directory of information related to independent insurance agencies which may include MGA’s (Managing General Agencies), and Property and Casualty Insurance Wholesalers, including, without limitation, information with respect to locations, contact persons and email addresses (the “Agency Directory”). In consideration of Customer’s agreement to abide by this Agreement and the Terms and to otherwise make payment to Company as set forth therein, Company hereby grants Customer, during the term of this Agreement, a limited, non-exclusive license (the “License”) in and to the Agency Directory solely for the limited purpose of marketing Customer’s programs to independent insurance agents and for no other purpose. For avoidance of doubt, Customer shall not have the exclusive right to use the Agency Directory and Company may, in its sole and absolute discretion, continue to use the Agency Directory for its own benefit and to license the Agency Directory to other third parties. During the term of this Agreement, Company shall provide Customer with updates to the Agency Directory in accordance with Company’s standard updating procedures. Company’s collective obligations to Customer with respect to the Agency Directory shall be referred to herein as the “Services.”
3. Obligations of Customer.
3.1. Payment Options. Customer shall tender payment to Company in accordance with the Terms and the Purchase Order. All payments are non-refundable. Any taxes are the responsibility of Customer. There shall be no deduction in respect of any such taxes, or any offset against payment for any taxes; and all payments shall be grossed up to take account of any withholding taxes.
3.2. Limited License. Customer agrees that Customer will not access, reproduce, duplicate, copy, sell, resell, visit or otherwise exploit the License for any purpose contrary to any term of this Agreement. At the end of any applicable access period, or in the case that Customer stops making payment in accordance with the Terms and pursuant to terms as set forth in the Purchase Order, or in the case that Customer breaches this Agreement, the License shall automatically and without further action be revoked.
3.3. No Reverse Engineering. Customer shall not reverse engineer, disassemble, or decompile any information, software or other tangible objects that embody, in whole or in part, the Agency Directory.
4.1. Effectiveness of Agreement. Customer agrees to be bound by this Agreement and this Agreement shall become effective upon the Effective Date.
4.2. Term of the Agreement. This Agreement shall continue in effect from the Effective Date until the expiration of the agreement pursuant to the Terms and the Purchase Order.
4.3 Termination. Notwithstanding anything to the contrary contained herein, Company may terminate this Agreement and immediately cease providing the Services hereunder, in the event of Customer’s breach of this Agreement, or any representation or warranty made by Customer hereunder is reasonably determined by Company to be false or inaccurate. In the event of any of the foregoing and Company desires to exercise its right to terminate hereunder, Company shall send notice to Customer describing the violation and then, if the matter remains uncured for fifteen (15) days, this Agreement shall thereupon terminate automatically.
4.3. Termination. Notwithstanding anything to the contrary contained herein, Company may terminate this Agreement and immediately cease providing the Services hereunder, in the event: (i) of Customer’s breach of this Agreement; (ii) any representation or warranty made by Customer hereunder is reasonably determined by Company to be false or inaccurate; or (iii) that, in the reasonable determination of Company, Customer is using the Services in an effort to threaten, intimidate, annoy, abuse or harass or is otherwise using the Services to promote a morally repugnant matter. In the event of any of the foregoing and Company desires to exercise it right to terminate hereunder, Company shall send notice to Customer describing the violation, and then, if the matter remains uncured to Company’s Satisfaction for fifteen (15) days, this Agreement shall thereupon terminate automatically.
5.1. No Guarantee. Unless agreed to in writing, Company makes no express, implied or implicit guarantee with respect to the effectiveness of the Services.
5.2. Confidential Information. Customer acknowledges that during the course of the Agreement, it may have access to certain Confidential Information of Company. During the term of this Agreement and for a period of two (2) years following the termination of this Agreement for any reason, within the geographical region of the United States of America and its territories, Customer shall, to the fullest extent permitted by law: (i) not disclose the Confidential Information to any third party, (ii) not use the Confidential Information in any fashion except for its own personal purposes, as intended under this Agreement, (iii) exercise reasonable care to prevent disclosure of the Confidential Information, and (iv) promptly notify Company of any unauthorized disclosure or use of the Confidential Information or compelled disclosure or use. If Customer becomes legally compelled to disclose any of Company’s Confidential information, Customer will immediately notify Company of that requirement so that Company may seek a protective order or other appropriate remedy. Customer acknowledges that breach of the covenants contained herein will cause irreparable harm to the disclosing party entitling the Company to injunctive relief, among other remedies, against any breach or threatened breach, without waiving or affecting any claim for damages or other relief.
5.3. Non-Solicitation. To the fullest extent permitted by law, during the term of this Agreement and for one (1) year thereafter, Customer shall not directly or indirectly, either alone or in concert with others, on Customer’s own behalf or on behalf of any other person or entity, solicit, or attempt to persuade or solicit any employee of Company to terminate his or her employment with Company, or to work for anyone in competition with the Company.
5.4. Reasonableness of Certain Conditions. The parties declare that the territorial and time limitations as stated herein, are reasonable and properly required for the adequate protection of each party’s business. If any of the territorial or time limitations are deemed to be unreasonable by a court, arbitrator, or other tribunal, then all parties agree and submit to adjustment of the limitation as the court deems reasonable.
5.5. Force Majeure. Except for payment obligations, neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
5.6. Relationship of Parties. The parties are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor or bind the other party.
5.7. No Third Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than the Company and Customer any rights, remedies or other benefits under or by reason of this Agreement. The Company’s subsidiaries and affiliated entities are express third party beneficiaries of this Agreement.
5.8. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party, without the requirement of posting bond, from any and all acts in violation of those provisions or any applicable law, which remedy shall be cumulative and not exclusive, and the parties hereby each consent to the entry of an injunction by any appropriate court or arbitral tribunal enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
5.9. Attorneys’ Fees. In addition to any other relief awarded, the prevailing party in any action arising out of this Agreement shall be entitled to its reasonable attorneys’ fees and costs.
5.10. Notices. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight courier service (e.g., Federal Express), or by first class mail (certified or registered), to the attention of the President or equivalent officer of the other party. Notices will be deemed effective two (2) business days after mailing, postage prepaid, if mailed, or the next day if sent by overnight courier service. Notices shall go to, in the case of Customer, to the address provided in the Terms, or, in the case of the Company, to our headquarters as provided for on the Website or in the Terms, or to any other addresses subsequently provided in writing by a party.
5.11. Assignment. Customer may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the Company. Any attempted assignment or delegation without the Company’s written consent will be void. The rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns. For purposes of this Section, a fifty percent (50%) or more change in control of Customer’s equity ownership shall constitute an assignment. Any assignment or transfer by Customer by operation of law, merger, consolidation, transfer of a majority of the voting equity of Customer or any similar transaction or series of related transactions shall be an assignment prohibited by this Section.
5.12. Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
5.13. Severability. If any court, arbitrator, or other tribunal finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
5.14. Controlling Law, Jurisdiction. Any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Orange County, California before an arbitrator, rather than in court. The Federal Arbitration Act and federal arbitration law shall apply to this Agreement. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. There is no judge or jury in arbitration, and court review of an arbitration award is limited. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. Judgment on the Award may be entered in any court having jurisdiction. If for any reason a claim proceeds in court rather than in arbitration, the parties waive a right to a jury trial. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern these Terms and Conditions and any dispute of any sort that might arise between them. To the extent any dispute, claim, or controversy proceeds in court rather than arbitration, it shall proceed in the federal or state courts of Orange County, California. The parties waive any objection they may have to jurisdiction and venue in such courts.
5.15. Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
5.16. Entire Agreement. This Agreement, including all documents or exhibits which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
5.17. Indemnification. Each party (the “Indemnifying Party”) shall indemnify the other party(s) and its directors, officers, agents, employees, contractors, affiliates, or subsidiaries (collectively referred to as Indemnified Parties) and hold the Indemnified Parties harmless from and against any liability, losses, costs, damages, and fees (including reasonable attorney’s fees) incurred by the Indemnified Parties in connection with any breach by the Indemnifying Party of any warranty, covenant, or obligation under this Agreement.
5.18. Limited Liability. The dollar amount of any liability of the Company to any Person under this Agreement or of Company’s indemnification pursuant to this Agreement shall be limited to the amount actually paid to Company by such Person for the Services pursuant to this Agreement.
5.19. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
5.20. Further Assurances. Each party to this Agreement shall, with reasonable diligence, take all such actions and execute all such documents as may be reasonably necessary to implement and carry out the intent of this Agreement.