Terms of Use Agreement
Version 1.02
Effective Date: Date Posted
Last Updated Date: 10/12/2021
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF EAGLE DATA, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY EAGLE DATA. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE. BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EAGLE DATA, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT The Agreement IS subject to change by Eagle Data in its sole discretion at any time. When changes are made, Eagle Data will make a new copy of the Terms of Use Agreement available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Use Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 (Registering Your Account) below). Eagle Data may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
IF YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH EAGLE DATA, THEN IF THERE IS A CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT THE TERMS OF THAT WRITTEN AGREEMENT, THE TERMS OF THE WRITTEN AGREEMENT SHALL GOVERN YOUR USE OF THE SERVICES.
1. USE OF THE SERVICES AND EAGLE DATA PROPERTIES. The Website, the Services, and the information and content available on the Website the Services (as these terms are defined herein) (each, a “Eagle Data Property” and collectively, the “Eagle Data Properties”) are protected by copyright laws throughout the world. Unless otherwise specified by Eagle Data in a separate license, your right to use any and all Eagle Data Properties is subject to the Agreement.
1.1 Updates. You understand that Eagle Data Properties are evolving. As a result, Eagle Data may require you to accept updates to Eagle Data Properties that you have installed on your computer or mobile device. You acknowledge and agree that Eagle Data may update Eagle Data Properties with or without notifying you. You may need to update third-party software from time to time in order to use Eagle Data Properties.
1.2 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Eagle Data Properties or any portion of Eagle Data Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Eagle Data Properties (including images, text, page layout or form) of Eagle Data; (c) you shall not use any metatags or other “hidden text” using Eagle Data’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Eagle Data Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Eagle Data Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Eagle Data Properties. Any future release, update or other addition to Eagle Data Properties shall be subject to the Agreement. Eagle Data, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Eagle Data Property terminates the licenses granted by Eagle Data pursuant to the Agreement.
1.3 Eagle Data Communications. By entering into this Agreement or using the Eagle Data Properties, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Eagle Data Properties, updates concerning new and existing features on the Eagle Data Properties, communications concerning promotions run by us or our third-party partners, and news concerning the Eagle Data and industry developments.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of Eagle Data Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).
2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Eagle Data Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (y) notify Eagle Data immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Eagle Data has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Eagle Data has the right to suspend or terminate your Account and refuse any and all current or future use of Eagle Data Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Eagle Data reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Eagle Data Properties if you have been previously removed by Eagle Data, or if you have been previously banned from any of Eagle Data Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Eagle Data.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Eagle Data Properties, including but not limited to, a mobile device that is suitable to connect with and use Eagle Data Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Eagle Data Properties.
3. OWNERSHIP.
3.1 Eagle Data Properties. You agree that Eagle Data and its suppliers own all rights, title and interest in Eagle Data Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or on any Eagle Data Properties.
3.2 Trademarks. Data’s name and all related graphics, logos, service marks and trade names used on or in connection with any Eagle Data Properties or in connection with the Services are the trademarks of Eagle Data and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Eagle Data Properties are the property of their respective owners.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Eagle Data through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Eagle Data has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Eagle Data a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Eagle Data Properties and/or Eagle Data’s business.
4. USER CONDUCT. As a condition of use, you agree not to use Eagle Data Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) take any action that: (i) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Eagle Data’s prior written consent; (ii) impersonates any person or entity, including any employee or representative of Eagle Data; (iii) interferes with or attempt to interfere with the proper functioning of Eagle Data Properties or uses Eagle Data Properties in any way not expressly permitted by this Agreement; or (iv) attempts to engage in or engage in, any potentially harmful acts that are directed against Eagle Data Properties, including but not limited to violating or attempting to violate any security features of Eagle Data Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Eagle Data Properties, introducing viruses, worms, or similar harmful code into Eagle Data Properties, or interfering or attempting to interfere with use of Eagle Data Properties.
5. FEES AND PURCHASE TERMS.
5.1 General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Eagle Data’s software, and, furthermore, any use of Eagle Data’s software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
5.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.
5.3 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Eagle Data for the Services until Eagle Data accepts your order.
5.4 Taxes. The payments required under Section 5.3 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Eagle Data determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Eagle Data shall collect such Sales Tax in addition to the payments required under Section 5.3 (Service Subscription Fees) of this Agreement. If any services [or products], or payments for any services [or products], under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Eagle Data, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Eagle Data for any liability or expense Eagle Data may incur in connection with such Sales Taxes. Upon Eagle Data’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5.5 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Eagle Data’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Eagle Data that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Eagle Data notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page.
6. DISCLAIMER OF WARRANTIES AND CONDITIONS.
6.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF EAGLE DATA PROPERTIES IS AT YOUR SOLE RISK, AND EAGLE DATA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EAGLE DATA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. This Section 10 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased on the Website.
(a) EAGLE DATA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) EAGLE DATA PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF EAGLE DATA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF EAGLE DATA PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH EAGLE DATA PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS EAGLE DATA PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. EAGLE DATA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EAGLE DATA OR THROUGH EAGLE DATA PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
6.2 Third-Party Materials. As a part of Eagle Data Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Eagle Data to monitor such materials and that you access these materials at your own risk.
7. LIMITATION OF LIABILITY.
7.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL EAGLE DATA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT EAGLE DATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF EAGLE DATA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE EAGLE DATA PROPERTIES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH EAGLE DATA PROPERTIES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON EAGLE DATA PROPERTIES; OR (E) ANY OTHER MATTER RELATED TO EAGLE DATA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF AN EAGLE DATA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN EAGLE DATA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY AN EAGLE DATA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
7.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, EAGLE DATA PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Eagle Data by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (B) $100; or (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN EAGLE DATA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY AN EAGLE DATA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY AN EAGLE DATA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
7.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
7.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EAGLE DATA AND YOU.
8. TERM AND TERMINATION.
8.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Eagle Data Properties, unless terminated earlier in accordance with the Agreement.
8.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Eagle Data Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Eagle Data Properties, unless earlier terminated in accordance with the Agreement.
8.3 Termination of Services by Eagle Data. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Eagle Data will refund your Service Subscription Fee, if already paid pursuant to Section 8.2 (Payment) or 8.3 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. You agree that all terminations for cause shall be made in Eagle Data’s sole discretion and that Eagle Data shall not be liable to you or any third party for any termination of your Account.
8.4 Termination of Services by You. If you want to terminate the Services provided by Eagle Data, you may do so by (a) notifying Eagle Data at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Eagle Data’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.9 (AUTOMATIC RENEWAL).
8.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your content associated therewith from our live databases. Eagle Data will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
8.6 No Subsequent Registration. If your registration(s) with, or ability to access, Eagle Data Properties or any other Eagle Data community, is discontinued by Eagle Data due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Eagle Data Properties or any Eagle Data community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Eagle Data Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Eagle Data reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
9. GENERAL PROVISIONS.
9.1 Electronic Communications. The communications between you and Eagle Data may take place via electronic means, whether you visit Eagle Data Properties or send Eagle Data e-mails, or whether Eagle Data posts notices on Eagle Data Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Eagle Data in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Eagle Data provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
9.2 Release. You hereby release Eagle Data and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Eagle Data Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Eagle Data Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an Eagle Data or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
9.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Eagle Data’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
9.4 Force Majeure. Eagle Data shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
9.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Eagle Data Properties, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
9.6 Exclusive Venue. All claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the Commonwealth of Virginia.
9.7 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the COMMONWEALTH OF VIRGINIA, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
9.8 Notice. Where Eagle Data requires that you provide an e-mail address, you are responsible for providing Eagle Data with your most current e-mail address. In the event that the last e-mail address you provided to Eagle Data is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Eagle Data’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Eagle Data at the following address: 71 S. Deeplands, Grosse Pointe, MI 48236. Such notice shall be deemed given when received by Eagle Data by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
9.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
9.11 Export Control. You may not use, export, import, or transfer Eagle Data Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Eagle Data Properties, and any other applicable laws. In particular, but without limitation, Eagle Data Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Eagle Data Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Eagle Data Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Eagle Data are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Eagle Data products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
9.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
9.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Supplemental Terms
1. SERVICES. Eagle Data has developed proprietary data, databases, software and products designed to facilitate the matching of offers with individual data profiles. Eagle Data’s products and services allow, either (a) the sharing of certain non -personally identifiable data and information related to individual consumers (“User Data”) collected by the publisher of a website (the “Publisher”) and the evaluation of such User Data based on criteria provided to Eagle Data by lenders and other financial services providers’ (“FSPs”) using Eagle Data’s proprietary data model (“Data Model”) in order to identify offers that such FSPs are willing to make (the “Offers”) to individual persons who meet the FSPs’ requirements (“Eligible Offer Recipients”); and/or (b) sending a hashed data file with the required User Data in a hashed, de-identified and blinded format (“Hashed Data”) for a FSP to match against its proprietary database (“FSP Database”) and then the FSP will provide Eagle Data the matched data files and the Offers that FSP is willing to make to each Eligible Offer Recipient (collectively, the “Hashed Data Query Model”). Eagle Data will then send those Offers to the Publisher so that the Publisher will forward the Offer to the applicable Eligible Offer Recipient. The foregoing services shall collectively be referred to as the “Services”. Partners and Publishers are also referred to as “Partner.”
2. LICENSE AND RESPONSIBILITIES.
2.1 Provision of Services. As part of the Services, Eagle Data will process the data submitted by the Publisher and for purposes of this Agreement Eagle Data will only process that data provided by the Publisher as contemplated under this Agreement and for Publisher’s business purposes as directed by Publisher.
2.2 Offer Model Method. Publisher will make the User Data available to Eagle Data via an API or other collection means agreed to by the Parties and Eagle Data will return offers that are eligible based on the information provided that are coming from FSPs that have agreed to display offers on Publisher’s website. The means of the sharing of Users Data will be based on a supported option by Eagle Data and may change from time to time, with 30 days advance notice. Publisher hereby grants to Eagle Data, a limited, non-exclusive, right and license to receive the User Data, and to use the User Data to apply against its FSPs’ Offer Models for the purpose of determining Eligible Offer Recipients for FSP’s Offers and delivering such Offers to the Publisher to forward to the applicable Eligible Offer Recipient. Eagle Data will only use and process the User Data received under this Agreement for to match User Data with available offers from FSPs to identify Eligible Offer Recipients and make the Offers available by the FSP available to such Eligible Offer Recipients. If Publisher chooses to display the Offers to the applicable Eligible Offer Recipient it shall do so within thirty (30) days of receipt of the applicable Offer and will not use the Offers for any other purpose. Publisher will not store the Offers for more than thirty (30) days. Publisher will not deliver any personally identifiable information to Eagle Data, except as specifically agreed to in writing. Publisher will not attempt to modify, decompile, disassemble, reverse engineer the Offers or Offer Model, or any FSP’s determination of Eligible Offer Recipients. Publisher will not be obligated to display any offers, what offers are displayed will remain in the sole discretion of the Publisher.
2.3 Hashed Data Query Model. Eagle Data may also deliver to Publisher a hash function to enable Publisher to create Hashed Data from the required User Data. Publisher, at its sole discretion, will decide whether to deliver the Hashed Data file to Eagle Data, who will forward the Hashed Data to its FSPs for the purpose of matching such Hashed Data against the applicable FSP’s Data Model. coming from FSPs that have agreed to display offers on Publisher’s website. The format of the API call will be decided by Eagle Data at its sole discretion and may change from time to time, with 30 days advance notice. The FSP will then deliver to Eagle Data the matched data files and the Offers that FSP is willing to make to each Eligible Offer Recipient. Eagle Data will forward such matched data files to Publisher. Publisher shall display all Offers to the applicable Offer recipients. Except as set forth in this Agreement, Eagle Data will not pass any User Data to any third party. Eagle Data shall not re-identify any User Data, including without limitation re-identifying, or attempting to re-identify, or allowing to be re-identified, any individuals who are within the User Data, including Hashed Data. Publisher will not attempt to modify, decompile, disassemble, or reverse engineer the Offers or Data Model, or any FSP’s determination of Eligible Offer Recipients. At no point will there be any personally identifiable information be exchanged between Eagle Data, Publisher and FSP. Publisher and FSP are responsible for making sure they are not sending any personally identifiable information through the system. Publisher shall not provide any personally identifiable information to Eagle Data under this Agreement.
2.4 Audit Rights. Once every 12 months upon at least ten (10) business days’ prior written notification, Eagle Data shall have the right to conduct audits of Partner as set forth in this paragraph. Audits may be conducted by Eagle Data or its independent contractor (subject to an agreed upon non-disclosure agreement and compliance with all reasonable Partner policies and procedures) during Partner’s normal business hours and at Eagle Data’s expense. The scope of the audit shall be limited to Partner’s compliance with the rules described in this Agreement. Partner shall reasonably cooperate with Eagle Data and any Eagle Data requests in conjunction with all such audits including, but not limited to requests to correct any deficiencies discovered during such audits within a period of time mutually agreed upon. In case the Audit will find any breach of the rules described in the present Agreement the costs for such Audit will be charged to the Partner.
2.5 FSPs. Publisher acknowledges and agrees that any relationship between an FSP and Publisher are between the FSP and Publisher. Eagle Data merely provides data and matching services to enable interactions between the Publishers and the FSPs. Therefore, Eagle Data is not responsible (or liable) for: (a) the actions of an FSP relating to the information provided to that FSP by Eagle Data on behalf of a Publisher or any FSP offers or data provided to Publisher by the FSP, or (b) the actions of Publisher relating to the FSP provided data. Further, Publisher acknowledges and agrees that Eagle Data is not liable for any disputes between the FSP and the Publisher. In certain cases, FSPs and Publishers may enter into agreements directly and it is Publisher’s obligation to review and to either accept or decline an agreement with the FSP. If Publisher enters into an agreement directly with an FSP, then compliance with that agreement, as applicable, is solely Publisher’s responsibility. Nothing contained in the FSP agreement shall modify the terms of this Agreement.
2.6 Security. Eagle Data shall maintain reasonable and appropriate data safeguards and procedures designed to prevent the authorized use or disclosure of the User Data as required under applicable laws (“Data Safeguards”), and will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the User Data. Eagle Data will periodically maintain archives and back-ups of the User Data in accordance with Eagle Data’s generally applicable disaster recovery and business continuity procedures and industry standards. The User Data may be stored on media or hardware containing other Eagle Data customers’ data both during and after the Term, provided such media and hardware are subject to the Data Safeguards. No more than once per calendar year, during the Term and for one (1) year thereafter, or as may be necessary or appropriate to ensure compliance with this Section, and upon fifteen (15) business days’ prior notice from Partner, Eagle Data will provide Publisher or its designee with access to information and/or Eagle Data’s facilities so that Partner may examine, assess, and evaluate the Data Safeguards. If, as a result of an audit, Partner determines that the Data Safeguards are materially deficient, Eagle Data will promptly take reasonably necessary steps to correct all deficiencies.
3. FEES. Partner will pay to Eagle Data the Fees as set forth in a separate agreement between the parties.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Proprietary Rights. Each party shall retain all rights, title and interest in and to any intellectual property and all modifications and derivative works thereof which it developed prior to the commencement of this Agreement and which it may develop after the Effective Date, including without limitation all patents, copyrights, and trademarks, whether or not registered with the U.S. Patent and Trademark Office, any trade secrets as defined by the Uniform Trade Secrets Act. Nothing in this Agreement shall grant to Partner any right in or to the Offer Model or Data Model.
4.2 Data Rights. As between Eagle Data and Publisher, Publisher retains all right, title and interest in and to the User Data and any elements thereof (including the compilation thereof), subject to the license granted in Section 2.2, if the Offer Model is selected on the Cover Page. As between Eagle Data and FSP, FSP retains all right, title and interest in and to the Offers and matching criteria and any elements thereof (including the compilation thereof).
5. REPRESENTATIONS AND WARRANTIES.
5.1 Mutual. Each party represents and warrants to the other party that it has the full corporate right, power and authority to enter into and perform its obligations under this Agreement, and that such actions do not and will not conflict with or result in a breach of any other agreement to which it is a party, and that this Agreement has been duly executed and delivered by such party and constitutes a valid, binding and enforceable agreement of such party.
5.2 Rights to Data. Publisher represents and warrants that it has obtained all necessary rights, permissions, and consents from its users as may be necessary to license, deliver, and otherwise share and use the User Data in accordance with this Agreement and as otherwise contemplated herein.
5.3 Accuracy. To the best of Publisher’s knowledge, all User Data delivered to Eagle Data under this Agreement is accurate and complete. All User Data provided under this Agreement is tied to an actual individual user or customer of Publisher and will not be an artificial set of data that cannot be tied back to an individual user or customer of Publisher.
5.4 FSP Offers. FSP shall ensure that all matching criteria and Offers will comply with all applicable laws, rules and regulations.
5.5 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
5.6 Usage and Security of Account. Partner shall be responsible for all usage and activity on their respective account and for loss, theft or unauthorized disclosure of Partner’s password (other than through Eagle Data’s negligent or willful conduct or omission). Partner shall provide Eagle Data with prompt written notification of any known or suspected unauthorized use of Partner’s account or breach of the security of Partner’s Account.
6. INDEMNIFICATION.
6.1 Eagle Data Indemnification. Eagle Data shall indemnify and defend Partner and its officers, directors, shareholders, employees and agents, against any and all claims made by a third party against Partner, and pay for all damages and costs awarded to such third party by a court or in a settlement signed by the parties, including reasonable attorneys’ fees, relating to or arising out of Eagle Data’s material breach of Section 2 or 5.1 of this Agreement.
6.2 Partner Indemnification. Partner shall indemnify and defend Eagle Data and its respective officers, directors, shareholders, employees and agents, against any and all claims made by a third party against Eagle Data, and pay for all damages and costs awarded to such third party by a court or in a settlement signed by the parties, including reasonable attorneys’ fees, relating to or arising out of Partner’s material breach of Section 2, 5.1, 5.2, or 5.3 of this Agreement.
6.3 Indemnification Procedures. The indemnified party shall notify the indemnifying party of such claim as soon as practicable upon receipt of knowledge of same; provided, however, that no failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations under this Agreement except to the extent that the indemnifying party can demonstrate material prejudice attributable to such failure. The indemnified party may participate in the defense or settlement of such claim at its own expense and with its own choice of counsel. The indemnifying party shall not settle any claim unless prior written approval and consent is obtained from indemnified party, which approval and consent will not be unreasonably withheld or delayed.
6.4 Court procedures. In the event any legal action is taken by either party against the other party to enforce any of the terms and conditions of this Agreement, it is agreed that the unsuccessful party to such action shall pay to the prevailing party therein all court costs, reasonable attorneys’ fees and expenses incurred by the prevailing party.
7. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER SUCH DAMAGES ARISE UNDER A TORT, CONTRACT, OR OTHER CLAIM, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED $10,000. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE LIMITATIONS IN THIS SECTION 7 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 5 (REPRESENTATIONS AND WARRANTIES), INDEMNIFYING PARTY’S OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8 (CONFIDENTIALITY). NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. Eagle Data shall not be liable for the Publisher passing any personally identifiable information with the request it sends to Eagle Data and shall not be liable for any such data becoming public due to a security breach.
8. CONFIDENTIALITY.
8.1 Confidential Information. In connection with the parties’ activities under this Agreement, each party may be supplying or disclosing to the other party, in confidence, certain Confidential Information (as defined in Section 8.3 below). All of the Confidential Information shall be and shall remain the sole and exclusive property of the disclosing party.
8.2 Obligations. Partner or Eagle Data may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, Partner must destroy or return to Eagle Data any Confidential Information provided by Eagle Data to Partner under this Agreement.
8.3 Non-Disclosure. Each party agrees to maintain all of the Confidential Information of the disclosing party in the strictest of confidence and shall not disclose, or permit or aid in the disclosure of any portion of the disclosing party’s Confidential Information and shall not, except in respect of the performance of its obligations hereunder, use the Confidential Information for any purpose whatsoever.
8.4 Return of Confidential Information. Upon request by either party, at any time, the other party shall promptly deliver to the requesting party or destroy all documents, records, notebooks and other materials (in any form or format) containing or reflecting any Confidential Information of the requesting party then in the other party’s possession or control. As used herein, “Confidential Information” of a party shall include all business, technical and financial information, data, know-how, ideas and customer lists, personally identifiable information and any and all other information and material, tangible or intangible, that is owned, used obtained or maintained by such party which provides such party an advantage over competitors who do not know or use it and derives to such party economic value (actual or potential) from not being generally known to the public or to other entities who can obtain economic or other value from its disclosure and use.
8.5 Exclusions. The foregoing obligations shall not apply in respect of any information which: (i) is in the public domain at the time of the disclosing party’s communication to the receiving party; (ii) enters the public domain through no fault of the receiving party subsequent to the time of the disclosing party’s communication thereof to the receiving party; (iii) was rightfully communicated by a third party to the receiving party free of any obligation of confidence; and/or (iv) is independently developed by a party without access to or in connection with the other party’s Confidential Information, which independent development the receiving party will have the burden of proving. Notwithstanding the foregoing restrictions, a party may disclose the Confidential Information of the other party to the limited extent it: (a) is required to be disclosed by law, regulation, governmental authority, or court order; provided, however, that if the receiving party seeks disclosure of such information, the receiving party shall provide the disclosing party with written notice thereof and the opportunity to seek a protective order or seek confidential treatment of any such information be to disclosed, if applicable, and, provided further, that the receiving party only discloses what is required to be disclosed; or (b) is necessary to enforce the terms of this Agreement.
8.6 Equitable Relief. Each party acknowledges that disclosure of the other party’s Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the party receiving Confidential Information the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. ADDITIONAL OBLIGATIONS.
9.1 Publisher Obligations to Eagle Data.
(a) Accurate, Up -to-Date Information. Publisher agrees to provide Eagle Data and FSP with accurate information about Publisher and Publisher’s promotional methods, and to maintain up-to-date “Account” information (such as contact information, web sites used, etc.). In Publisher’s Account, Publisher must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary.
(b) Use of Links. Publisher represents and warrants that all promotional means used by Publisher will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that Publisher will not mislead others. Publisher agrees to: (i) use ethical and legal business practices, (ii) comply with the FSP’s program terms and this Agreement, (iii) maintain a privacy policy on Publisher’s Web site and for any non-Web site based promotional method made available to visitors, and (iv) designate Publisher Account as “special” if Publisher promotes a FSP by any means other than displaying a Link to the FSP on Publisher’s Web site. Eagle Data must approve all of Publisher’s promotional activities and may deem Publisher’s promotional activities inappropriate and a material breach of this Agreement in Eagle Data’s sole discretion. Eagle Data’s network quality department reviews Publisher conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by Publisher through Publisher’s promotional methods, is grounds for immediate termination of this Agreement or deactivation of Publisher’s Account.
(c) Promotional Methods. Publisher represents and warrants that Publisher will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. Publisher represents and warrants that Publisher will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Publisher’s site content /site visit or by downloadable software applications for which Publisher is the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the requirements of this Agreement (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) end user agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a transaction that might otherwise result in a payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Publisher) and (v) non-interference with competing advertiser/ Publisher referrals.
(d) Personally Identifiable Information of Visitors. Publisher represents and warrants that Publisher will not enable the Tracking Code to collect personally identifiable information of visitors that would allow Eagle Data to personally identify visitors.
(e) Privacy. Publisher must conspicuously post Publisher’s privacy policy on Publisher’s Web site and otherwise make it available to all visitors. Publisher’s privacy policy must comply with all laws and regulations regarding the privacy of visitor information, be commercially reasonable, and fully and accurately disclose Publisher’s collection and use of visitor information. Publisher must fully and accurately disclose Publisher’s use of third party technology, including use of cookies and options for discontinuing use of such cookies.
(f) Applicable Codes and Code Maintenance. In order for Eagle Data to record the tracking of visitors’ transactions resulting from clicks on Links to FSPs promoted by Publisher, Publisher must include and maintain an Eagle Data “Tracking Code” within the FSP’s Links. All FSP links and all advertisements must be in a compatible format.
(g) Usage and Security of Account. Publisher shall be responsible for all usage and activity on Publisher’s account and for loss, theft or unauthorized disclosure of Publisher’s password (other than through Eagle Data’s negligent or willful conduct or omission). Publisher shall provide Eagle Data with prompt written notification of any known or suspected unauthorized use of Publisher’s Account or breach of the security of such Account.
9.2 Eagle Data’s Services.
(a) Tracking Transactions and payout. Eagle Data shall determine (where possible) actual payout that should be credited to Publisher’s Account. Eagle Data may, in Eagle Data’s sole discretion, apply an estimated amount of payout, if: (i) Publisher is referring visitors to FSP as verified by clicks through Links to FSP with Eagle Data Tracking Code, (ii) where there is an error in FSP’s transmission of Tracking Code data to Eagle Data, and (iii) where Eagle Data is able to utilize a historical analysis of Publisher’s promotion of FSP to determine an equitable amount of estimated payout.
(b) Charge-backs. An FSP may apply, or Eagle Data may apply, a debit to Publisher’s Account in an amount equal to a Payout previously credited to Publisher’s Account in circumstances of: (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide transactions; (iv) non-receipt of payment from, or refund of payment to, the visitor by the FSP; or (v) Publisher failure to comply with FSP’s program terms or other agreement with FSP (“Charge-back”). Charge-backs may be applied to Publisher’s Account at any time, including previous payment cycles.
(c) Access to Tracking and Reporting Tools. Eagle Data shall provide Publisher with access to tracking and reporting tools, and to support services. From time to time Eagle Data may offer optional services for a fee. Fees for such optional services are at Eagle Data’s then-current published rates or as may be quoted by Eagle Data, and are payable in advance or, in the case of Publisher, may be off-set against Publisher’s positive Account balance (at Eagle Data’s discretion). Tracking detail regarding visitor transactions is not available on a real-time basis for all FSPs and there may be reporting delays regarding transactions for some FSPs. Eagle Data may make available, for fees that Eagle Data shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Service.
(d) Support. Support for Partner’s program is available on-line through email. Phone support may also be available during operating hours, except holidays.
(e) Facilitating Payment of payout. Subject to other provisions in this Agreement, Eagle Data shall credit Publisher’s Account with a Payout for each qualifying transaction in accordance with the FSP’s Payout rate and program terms for the relevant transaction. On or about the 20th day of each calendar month, Eagle Data will issue to Publisher any positive balance in Publisher’s Account for transactions reported for the previous month, provided Publisher’s Account balance exceeds the required “Minimum Account Balance.” Eagle Data shall have no obligation to make payment of any payout for which Eagle Data has not received payment from the relevant FSP of all monies due to Eagle Data (including for all payout owed by such FSP to all of such FSP’s Publishers). Publisher agrees that Eagle Data has the right, but not the obligation, to seek on behalf of Publisher any and all amounts due from FSPs, including, but not limited to payout. If Eagle Data elects, in its own discretion, not to make payment to Publisher for amounts not received from an FSP, those amounts shall not be included in the Minimum Balance Amount. Publisher’s recourse for any earned payout not paid to Publisher shall be to make a claim against the relevant FSP(s), and Eagle Data disclaims any and all liability for such payment. Publisher may elect to receive payment in any of the currencies that Eagle Data supports (as may be amended by Eagle Data). The conversion rate shall be determined in accordance with Eagle Data’s operating standards. Eagle Data has the right to assess service fees in order to process or stop Publisher’s payment as necessary. The number or amount of transactions, credits for payout, and debits for Charge-backs, as calculated by Eagle Data, shall be final and binding on Publisher.
(f) Dormant Accounts. If Publisher’s Account has not been credited with a valid, compensable transaction that has not been charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at Eagle Data’s then-current rate shall be applied to Publisher’s Account each calendar month that Publisher’s Account remains an open yet Dormant Account or until Publisher’s Account balance reaches a zero balance, at which time the Account shall become deactivated. transactions will not be counted if the transaction subsequently becomes a Charge-back.
(g) Negative Accounts. Publisher may have a negative balance if Publisher’s Account is debited amounts equivalent to previous payout for Charge-backs and Publisher does not have an adequate Account balance to cover the Charge-back amounts. When Publisher has a negative balance, Publisher must immediately remit payment to Eagle Data in an amount sufficient to bring Publisher’s Account to a zero balance, or Publisher’s Account is subject to 1.5% interest per month, compounded monthly.
10. TERM AND TERMINATION.
10.1 Term. If there is a separate agreement between the parties, then term be the same as in that separate agreement, otherwise this Agreement shall continue until terminated by either party on thirty (30) days written notice. If a party materially breaches this Agreement and does not cure such breach within 30 days from the date that the other party gives written notice of such breach, the other party may terminate this Agreement upon written notice to the breaching party.
10.2 Effect of Termination. The following provisions of this Agreement shall survive any termination or expiration of this Agreement: Sections 4 (Intellectual Property Rights), 5 (Representations and Warranties), 6 (Indemnification), 7 (Limitation of Liability), 8 (Confidentiality), 10.2 (Effect of Termination), and 10 (Miscellaneous). Moreover, any termination shall not relieve either party of any rights, obligations, or duties that accrue prior to the effective date of such termination.
11. MISCELLANEOUS.
Neither party may assign or transfer this Agreement or any of its rights hereunder (whether by operation of law or otherwise), or delegate any obligations hereunder, without the express written consent of the other party; except that Eagle Data may assign or transfer this Agreement, in its entirety, in connection with a change in control of Eagle Data and/or in connection with a sale or other transaction involving all, or substantially all, of its assets, stock or other equity interests. Any such assignment or transfer in violation of the foregoing will be null and void from the beginning. This Agreement shall be governed by the laws of the Commonwealth of Virginia without reference to its conflict of laws or choice of laws provisions. The relationship between the parties is that of licensor and licensee. Nothing in this Agreement shall be deemed to create an employment, partnership, joint venture, or agency relationship between the parties. A waiver by either party of any term or condition of this Agreement in any instance must be in writing and shall not be deemed or construed as a waiver of a subsequent breach thereof, or of any other provision. All remedies and rights contained in this Agreement are cumulative and do not limit any other remedy or right available to such party. All notices and other communications under this Agreement must be in writing and will be deemed to have been given when received by the addressee and sent by a nationally recognized overnight delivery service to the addresses set forth on your Account (or to such other addresses as a party may designate by notice to the other party). This Agreement (and its exhibits) supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof, and cannot be amended or modified except in writing signed by both parties. Unless otherwise expressly provided, the word “including” means “including without limitation” and does not limit the preceding words or terms. This Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one agreement. If any of the provisions of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction applicable to the Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of the parties shall be construed and enforced accordingly. Eagle Data is not obligated to and shall not provide You with tax and/or legal advice. Eagle Data undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements.