Incognito Data Proposal
This Advertising Services Agreement (“Agreement”) is effective as of the last date of execution (“Effective Date”) by and between Incognito Data, LLC., a Texas Limited Liability Company, with its principal place of business at 2140 E Southlake Blvd., STE L-608, Southlake, TX 76092 (“ID”) and ______________________________________., a ____________________________, with its principal place of business at_____________________________________________________________________.
(“Client”) (each, a “Party,” and together, the “Parties”), enter into this Agreement upon the terms and conditions herein.
1. TERM AND TERMINATION.
The term (“Term”) of the Agreement shall begin on the Effective Date and continue until terminated by either Party if no Schedule is then in effect or scheduled to come into effect. The contract start date will be the same as the first identified visitor date, and automatic recurring payments will take place on the same day each month. This is a three-month initial contract, then a month-to-month contract with a 30-day notice of cancel via email. In the event that a payment cannot be completed automatically, you will be notified via email and from date of the email notification will have 3 days to complete payment. Payments made after this 3-day period will be subject to an additional late payment fee of 10%.
If a Schedule is in effect or scheduled to come into effect, then either Party may immediately terminate this Agreement upon written notice that:
2. SERVICES. 2.1 ID. ID agrees to perform certain paid digital marketing services making use of electronic and digital information and techniques that provide multi-channel marketing opportunities across various technological platforms and media, related to e-commerce tracking of and advertising targeting Client’s customers, which customer information (“Client Data”) shall be supplied to ID by Client (the “Services”). The Services will be set forth in Schedule A to this Agreement and any other written schedules as annexed hereto, statements of work, order forms, work orders, or other documents executed by authorized representative(s) of each of the Parties and expressly made subject to this Agreement, including any amendments thereto (each, a “Schedule”). Such Schedules will describe the Services, the applicable fees, and any other terms agreed to by the Parties.
2.2 Agency. Client agrees that ID will act as its agent(s) authorized to act on Client’s behalf with respect to any third party in connection with the Services being provided, and Client agrees to be bound by the terms and conditions of ID’s agreement with such third party to the extent those terms and conditions do not conflict with a Schedule or this Agreement. If a Schedule and this Agreement conflict, this Agreement controls. Client agrees that, during the term of this Agreement, (i) ID shall be the Client’s agent empowered to perform the Services on behalf of Client, (ii) ID is authorized to provide Client’s Data to third parties to the extent necessary to perform the Services, and (iii) Client shall abide by the terms of any third party agreements to which ID is a party and which have been executed to facilitate the terms of this Agreement. Client further agrees that Client shall not instruct ID to process or to take any other action with Client Data that Client knows or should reasonably know would violate an applicable law or any other published privacy policies or notice and disclosure statements under which such data was collected, including, without limitation Client’s privacy policies.
2.3 Consumer Communication. Client shall take commercially reasonably steps to address any communication initiated by a consumer, consumer advocacy group, anti-spam advocacy group, or internet service provider (ISP) arising out of the Services. Client must promptly notify ID of such request and provide ID with a written summary (email to suffice) of the communication with the consumer. If such communication concerns an email address provided as a part of the Services, and the consumer so requests, Client shall unsubscribe the consumer as soon as practicable from receiving commercial email from Client (at most, within ten (10) business days) and shall inform the consumer of the same. Client must use commercially reasonably efforts to honor all known consumer opt-outs.
3. PRICING AND PAYMENT. 3.1. Pricing. Client agrees to pay ID for its Services in accordance with the pricing set forth in each applicable Schedule. Unless otherwise specified, all fees are exclusive of applicable taxes.
3.2. Taxes. Client shall pay all taxes levied in connection with the Agreement, except taxes based upon ID’s net income, corporate franchise, business license, payroll withholding or property taxes on ID-owned assets.
3.3. Payment. Payment of any fees hereunder is due within three (3) calendar days from receipt of invoice. If Client disputes the validity of an invoiced fee, Client must provide prompt written notice within three (3) calendar days stating the details of any such dispute. If only a portion of an invoice is in dispute, Client shall pay all undisputed amount in accordance with the terms of this section. Acceptance by ID of any partial payment does not constitute a waiver of the disputed amounts. Any undisputed amounts not paid within three (3) days of receipt of invoice shall accrue interest at a rate of one percent per month or the maximum lawful rate, whichever is less, with such amount accruing and determined as of the date such undisputed amount was originally due.
4. PROPRIETARY RIGHTS. 4.1. ID Intellectual Property. This Agreement does not convey to Client any ownership rights, licensed rights, or other rights of any sort to ID’s rights, title and interest (including without limitation all intellectual property rights) in any data, technology, infrastructure, methods or know-how in providing its Services.
4.2. Client Intellectual Property. Client represents that it has legally obtained the right to distribute Client Data to ID for the uses permitted in this Agreement and warrants that in doing so, ID Client owns and retains all right, title and interest (including without limitation all intellectual property rights) in and to Client Data and any updates or modifications to the foregoing, unless expressly provided for otherwise in a Schedule.
4.3. Other Intellectual Property Rights. Nothing in this Agreement shall affect or modify either Party’s ownership rights in any pre-existing or future works, trademarks, copyrights or technologies developed or created by either Party.
5. ID/CLIENT RESPONSIBILITIES 5.1. Prohibited Uses of Services. Client shall not use ID’s Services to send or facilitate:
5.2 Data Security. Where ID delivers data to Client, Client shall protect any data and information provided by ID from unauthorized access, loss and misuse, such efforts including, but not limited to, the encryption of stored information behind a secured server network and organizational, contractual, technological and managerial safeguards. Client shall promptly (and in all cases within 24 hours) notify ID of any access or acquisition of ID’s data or information, and to cooperate in any investigation concerning such access of acquisition.
6. CONFIDENTIALITY. 6.1. Confidential Information. Pursuant to this Agreement, the Parties may disclose to one another certain confidential or proprietary information (“Confidential Information”), including, without limitation: (i) customer data, tapes, mailing lists, product designs, business and marketing plans, product strategies, pricing information, capabilities, specifications, solution design documents, flowcharts, presentations, and analysis reports or results from testing of any products. Confidential Information shall also include the terms and conditions of this Agreement and any other materials marked or reasonably considered “confidential” or “proprietary.”
6.2. Obligations. Each Party receiving Confidential Information shall: (i) hold the disclosing Party’s Confidential Information in strict confidence; (ii) except as required by Law, not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party and/or to effect the purpose of this Agreement; and (iii) employ all commercially reasonable steps to protect the disclosing Party’s Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information. Client acknowledges that the sharing of certain Confidential Information with third parties is necessary and will occur in order to provide the Services contemplated herein. Any Party discovering unauthorized disclosure of Confidential Information will, as soon as reasonably practical, report to the other Party such unauthorized disclosure or access and take all commercially reasonable measures to prevent any further unauthorized disclosure or access.
6.3. Injunctive Relief. The Parties acknowledge that a Party’s breach of Section 6.1 and 6.2 may result in irreparable harm and significant injury to the other Party and its customers, and/or partners that may be difficult to ascertain. Without limitation, the non-breaching Party will have the right to seek, in addition to any other remedies that may be available, an immediate injunction in the event of any breach of Section 6.1 or 6.2 without posting bond. 6.5. Encryption and Prohibited Data. Client must encrypt any personally identifying information, using industry standard encryption measures, before transferring such information to ID over a public network or on physical media. Unless expressly authorized in a Schedule, Client shall not provide to ID any of the following information (“Prohibited Data”):
EXCEPT AS STATED IN THIS SECTION 7 OR IN A SCHEDULE, THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS.
8. INSURANCE. ID shall, at its own expense, maintain in full force and effect during the term of this Agreement insurance policies with responsible insurance carriers covering the use of data and obligations pursuant to this Agreement, in the amount of at least $500,000 per occurrence, and extending coverage for bodily injury, property damage, personal and advertising injury, data breach loss, data breach liability, cyber-crime coverage including cyber extortion, and liability arising from violation of privacy rights.
[Such Insurance shall name client as an additional insured with respect to any and all claims arising out of or relating to the Services provided under the terms of this agreement, including any amendment thereto. Such Insurance shall be primary.]
9. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
ID’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE AMENDMENT SHALL BE LIMITED TO THE AMOUNT PAID TO VDI BY CLIENT PURSUANT TO THE TERMS OF THIS AGREEMENT.
These limitations shall not apply to a Party’s indemnification obligations and other damages resulting from a Party’s gross negligence or intentional misconduct. For purposes of this Agreement, “gross negligence” shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences. Each party shall have a duty to mitigate damages for which the other party is responsible.
10.INDEMNIFICATION. Each Party (“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, including its parent, subsidiaries, affiliates and each of their respective officers, directors, agents, employees, members, Clients and its Representatives (“Indemnified Party”) from and against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the Indemnified Party as the result of: (i) injuries or property damage caused by the Indemnifying Party’s representatives; (ii) the Indemnifying Party’s failure to comply with all applicable laws, rules, guidelines, principles and regulations; and (iii) the misappropriation or misuse of the Indemnified Party’s Confidential Information by the Indemnifying Party.
11. MISCELLANEOUS. 11.1 Applicable Law; Jurisdiction; Venue; Attorney’s Fees. This Agreement is governed by Texas law without regard to its choice of law rules. Any dispute between the Parties shall be resolved exclusively in the state or federal courts located in Dallas, Texas, to which jurisdiction both parties irrevocably submit. The prevailing party in any action arising out of or relating to this Agreement shall be entitled to reimbursement by the non-prevailing party of its reasonable attorney’s fees and costs through appeal. 11.2 Conflicting Provisions. In the event of conflicting provisions between this Agreement and any Schedule, the terms of this Agreement shall control and resolve the conflict, unless specifically stated otherwise in the Schedule.
11.3 Modification, Severance, and Waiver. The Agreement and any Schedule may only be amended in writing. If any one or more of the provisions of this Agreement or a Schedule shall for any reason be held to be invalid or unenforceable, the same shall not affect any of the other portions thereof. Failure or delay by either Party in exercising any right hereunder shall not be a waiver of such right.
11.4 Assignment. Neither Party may assign its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.
11.5 No Third Party Beneficiaries. Except as expressly set forth herein, there are no intended third party beneficiaries to this Agreement.
11.6 Force Majeure. If performance of any obligation hereunder is prevented or interfered with by reason of fire, casualty or accident, strike or labor disputes, war or violence, law, proclamation, regulation, or requirement of a government agency, or another act or condition beyond the reasonable control of a Party, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence.
11.7 Notices. Except for communications made in the normal course of the Services, any notice or other communication required hereunder shall be made in writing and sent to the address first set forth above with respect to the recipient of such notice by certified United States mail, return receipt requested, or by a nationwide courier delivery service.
11.8 Survival of Terms. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.
11.9 Counterparts. This Agreement and any Schedule may be executed in any number of counterparts, including via the exchange of .pdf or facsimile copies or by the use of a mutually agreeable electronic signature authentication program, each of which may be executed by less than all of the parties hereto and shall be enforceable with respect to the parties actually executing such counterparts.
11.10 Entire Agreement. The Agreement, together with the Schedules, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the Parties. No terms or conditions of either Party’s invoice, purchase order or other administrative document (unless signed by authorized representatives of both Parties and expressly referencing that it amends this Agreement) will be effective as a modification of the terms and conditions of this Agreement or a Schedule, regardless of the other Party’s failure to object to such form.
Dealership Authorized Signer:_____________________________________________________________________________________________
Incognito Data Authorized Signer:________________________________________________________________________________________
INCOGNITO DATA SERVICES
The Services ID will provide will attempt discover information on only the Marketing Opt-In users of Client’s Website, namely www._______________________________. The information ID will seek to discover about the Marketing Opt-In users will be such user’s first name, last name, email address, phone number, physical address, approximate income, ethnicity, date of birth, own or rent home.
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Document Name: Incognito Data Proposal
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