Last Updated: May 25, 2018
These Terms of Service (“Terms”) contain legally binding terms and conditions for your access and use of the hosted applications and services (“Services”) provided by eDataSource, Inc. (“eDataSource”). READ THESE TERMS CAREFULLY. THEY FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND EDATASOURCE.
If you are licensing Services on behalf of an organization, “you” herein refers to that organization.
By accessing or using the Services, you (i) acknowledge that you have read and understand these Terms; (ii) represent that you have the legal authority to accept these Terms; and (iii) agree to be legally bound by these Terms.
Provision of Services
eDataSource will provide Services in accordance with these Terms. eDataSource will be responsible for the performance of its personnel and their compliance with these Terms in the provision of Services.
In providing the Services, eDataSource will implement and maintain an information security program that contains administrative, technical, and physical safeguards (“Safeguards”) to protect the confidentiality, security and integrity of your information (“Information Security Program”). The Information Security Program will meet relevant industry practices for such Safeguards, and will comply with applicable laws governing the security and handling of your confidential information. Without limitation, the Information Security Program will include: (i) adequate physical security of all premises in which Confidential Information of Customer will be processed and/or stored; (ii) reasonable precautions taken with respect to the employment of and access given to eDataSource personnel, including background checks, training, disciplinary measures, and security clearances that assign specific access privileges to individuals; and (iii) an appropriate network security program which includes (a) appropriate access controls and data integrity controls, (b) monitoring, testing and auditing of all controls and (c) appropriate corrective action and incident response plans.
Permitted Use of Services; Restrictions
You agree to access and use the Services solely for your own internal business use and for no other purpose whatsoever. You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest any other rights in or to the Services other than to use the Services as set forth herein.
You agree that you will not: (i) transfer, sublicense, lease, lend, rent, copy, modify or distribute the Services for any purpose; (ii) reverse-engineer, decompile or create derivative works of the Services; (iii) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services; (iv) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms; (v) infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party in connection with your access or use of the Services; (vi) transmit or upload as part of the Services any virus, worm, trojan horse or other harmful code or use or misappropriate the data in the Services for your own (or a third party’s) commercial gain; (vii) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services; (viii) access the Services for the purpose of building a similar or competitive product or service; or (ix) use the Services on behalf of more than one client or other third party per license purchased.
You will (i) be responsible for all use of the Services under your account; (ii) be responsible for the accuracy, quality and legality of information and/or data you provide to eDataSource in connection with the Services (“Your Data”); (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services; and (iv) use the Services only in accordance with these Terms and any other applicable documentation, agreements and/or laws and regulations.
eDataSource, its licensors and service providers own all right, title and interest in and to the Services, including all related intellectual property rights. No rights in or to the Services are granted to you except as expressly set forth in your sales agreement. You grant eDataSource a limited, non-exclusive, royalty-free right to use Your Data as may be necessary to provide Services to you in accordance with these Terms.
You grant to eDataSource and its affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback you provide relating to the Services without any compensation or other obligation to you.
eDataSource may monitor your use of the Services and use data related to such use in an aggregate and anonymous manner (“Aggregate Data”). You agree that eDataSource may make Aggregate Data available publicly or as part of the Services, provided that such Aggregate Data does not incorporate Your Data or identify you. eDataSource retains all intellectual property rights in Aggregate Data.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OR YOUR SALES AGREEMENT, THE SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EDATASOURCE, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, EDATASOURCE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
LIMITATION OF LIABILITY
IN NO EVENT WILL EDATASOURCE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, DATA LOSS, INTERRUPTION OF BUSINESS, LOST BUSINESS OR LOST PROFITS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES OR THESE TERMS. IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF EDATASOURCE ARISING OUT OF RELATING TO THESE TERMS OR THE PROVISION OF SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES DURING THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
Suspension and Termination for Cause
eDataSource reserves the right to suspend your access and use of the Services if you are in violation of any obligation under these Terms until such time as the violation is corrected, as determined by eDataSource in its reasonable discretion. If you are in material violation of the terms and do not cure such material violation within 30 days of notification by eDataSource will have the right terminate your access to the services.
Suspension or termination under this section will be without any refund, payment or other obligation to you.
These Terms are effective upon acceptance as set forth above and terminate upon the termination of your access or license to the Services, whichever occurs first. All provisions of these Terms which by their nature should survive termination will survive termination, including, without limitation, intellectual property provisions, warranty disclaimers and limitations of liability.
These Terms do not modify or otherwise affect the terms contained in your Sales Agreement, which remain in full force and effect. In the event of a conflict between these Terms and the terms of your Sales Agreement, the terms contained in the Sales Agreement will prevail unless the Sales Agreement expressly says otherwise.
You may not assign or otherwise transfer any or all of your rights or obligations under these Terms without eDataSource’s prior written consent. If any provision of these Terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original intent and all other provisions will continue in full force and effect. Any dispute between you and eDataSource regarding these Terms will be governed by the laws of the State of New York, without giving effect to any conflict-of- laws principles. For all purposes of these Terms, you consent to exclusive jurisdiction and venue in the federal courts or state courts located in New York County, New York. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. These Terms constitute the entire agreement between you and eDataSource regarding your access and use of the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services. eDataSource may change or modify these Terms from time to time in its reasonable discretion. If eDataSource makes material changes to these Terms, it will provide advance or contemporaneous notice of such changes. Your continued use of the Services following any change will confirm your acceptance of the revised Terms. If you do not agree to the amended Terms, you must stop using the Services.
REPUTABLE SENDER PROGRAM TERMS OF SERVICE
If the Services licensed to you includes a subscription to the eDataSource Reputable Sender Program, then in addition to the Terms set forth above, the following terms shall apply to your use of the eDataSource Reputable Sender Program:
Reputable Sender (“Accreditation”). Accreditation is eDataSource’s performance-based preferential treatment program. The email accreditation program requires that You adhere to eDataSource’s Reputable Sender Standards defined within your service agreement. If You exceed Your permitted email volume during the Your subscription term, You must upgrade Your permitted email volume to the appropriate email volume.
eDataSource may require You to provide on a reasonable basis information that is necessary to confirm the accuracy of Your Accreditation application and for compliance with the Program Standards. Such information request shall be conducted remotely by eDataSource and shall not require eDataSource to connect to Your system or network.
Accreditation Termination for Cause
You acknowledge that eDataSource may terminate Your participation in the Accreditation Program if: (i) You are in violation of the Program Standards and do not cure such violation within fifteen (15) business days of being notified of such violation; (ii) Your volume of email sent over IPs or domains enrolled in Accreditation exceeds the maximum volume permitted by the license; or (iii) any of Your IPs or domains in Accreditation are not in and/or have not been compliance with Program Standards on multiple occasions (even if You have in each instance cured such non-compliance).
Suspension of Accreditation IP Addresses, Domains, and/or Account
By way of illustration and not limitation, eDataSource, in its sole discretion may suspend (i) Your account if the volume of email sent exceeds the maximum volume allowed according to the license, unless You received prior written approval for excess volume from eDataSource, and (ii) IP addresses, domains, or Your account if You send any unauthorized material over IP addresses or domains or if content of email messages sent does not meet applicable standards.
You agree (a) not to use or disclose to any third party the Confidential Information of eDataSource, except that it may disclose relevant aspects of eDataSource’s Confidential Information only to its officers, employees, designees, directors, legal counsel, and financial advisors on a need to know basis to the extent that such disclosure is necessary to participate in the Accreditation Program; and (b) to protect eDataSource’s Confidential Information with at least the same degree of care it uses to protect its own Confidential Information, but at a minimum to use commercially reasonable efforts. In no event will You share any eDataSource Confidential Information with any eDataSource competitors or entities that engage in activities that are competitive with eDataSource’s products or services, notwithstanding the fact that such entity may otherwise be a professional working for You.
Scope of Use
You shall not (i) participate in the Accreditation Program for the benefit of any third party or otherwise commercially exploit or make available to any third party the Accreditation Program or any part thereof in any way; (ii) use the Accreditation Program to send or store material containing software viruses, worms, Trojan horses or other harmful computer code; (iii) interfere with or disrupt the integrity or performance of the Accreditation Program; (iv) attempt to gain unauthorized access to eDataSource’s systems or networks; (v) reverse engineer, decompile or disassemble the Accreditation Program, or any of eDataSource’s techniques, processes, methods, know-how or other technology; (vi) access or use the Accreditation Program in order to build a competitive product or service, or feature or function thereof; or (vii) aid or permit others to do any of the foregoing (i)-(vi).