TERMS AND CONDITIONS
THIS MASTER SERVICES AGREEMENT between Avalon Marketing (Avalon Marketing), A New York Company, and “Client”. Avalon Marketing and the Client are sometimes collectively referred to in this Agreement as the “Parties”.
The term of this Agreement shall commence as of the date listed above and shall continue until terminated by either party upon at least thirty (30) days written notice, unless otherwise terminated as provided for in this Agreement (the “Term”).
This Agreement sets forth the terms and conditions for e-mail campaigns and data services to be delivered by Avalon Marketing and Client pursuant to each Insertion Order or Estimate entered into by the Parties during the Term. Each Insertion Order or Estimate is sometimes referred to as an “Order Contract” in this Agreement. Client shall not use exit pop-up window links on any Insertion Order related campaign landing pages without the prior, written consent of Avalon Marketing.
I. Unless otherwise specifically stated in a PO or Estimate executed by both Parties, invoices shall be rendered on a monthly basis, or upon completion of Avalon Marketing’s. Unless otherwise specifically stated in an Order Contract executed by both Parties, any undisputed portion of an invoice shall be paid upon completion.
II. If any invoices become more than thirty (30) days “past due”, Avalon Marketing, in its sole discretion, may immediately terminate this Agreement and any related Order Contracts and/or may suspend providing any or all of the Services to Client. In addition, invoices thirty (30) days or more past due are subject to interest charges of one and one-half (1.5) percent per month or eighteen percent (18%) annual rate, or the highest rate allowed by law, whichever is lower. Client shall also reimburse Avalon Marketing for all reasonable expenses (including attorneys’ fees) incurred by Avalon Marketing in collecting such overdue invoices. Avalon Marketing may apply any deposits made in connection with an Order Contract to outstanding amounts owed by Client to Avalon Marketing. Client is not entitled to any credits or refunds.
Each Party shall keep confidential and shall not disclose confidential information of the other Party, and shall not use such information except as required to perform its obligations under this Agreement. Each party will observe in respect of the confidential information of the other the same standards and practices as it observes for its own confidential information of similar character and importance but in any event not less than commercially reasonable standards and practices. Each Party acknowledges that a breach of this Section would cause the other Party irreparable harm and that the harmed Party shall be entitled to seek appropriate injunctive relief in the event such breach is threatened or occurs. For the purposes of this Section, the following shall not constitute “confidential information”: (i) information in the public domain, (ii) information already known to the receiving Party, (iii) information acquired by the receiving Party from another source without violation of any confidentiality obligation, (iv) information developed by a Party independently of information received from the disclosing Party, or (v) information a Party is required to disclose by law or a final order of a court or other governmental agency or authority of competent jurisdiction.
The duties and obligations to protect the Information shall survive for three (3) years following termination or expiration of the Term. Within ten (10) days of the termination or expiration of the Term, each Party shall return all Information of the other Party in its possession or control to the other Party.
1.3 CAN-SPAM Compliance; Compliance with all Laws
I. Avalon Marketing represents and warrants that (i) each e-mail address pursuant to this Agreement has been obtained through “Affirmative Consent” as defined in the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, and all amendments thereto (the “CAN-SPAM Act”); and (ii) Avalon Marketing will not engage in any conduct prohibited by the CAN-SPAM Act in connection with this Agreement, including, without limitation, e-mail harvesting, dictionary attacks or other deceptive practices.
II. Client represents and warrants that it will comply with the CAN-SPAM Act and that the transmission and delivery of Client’s advertisements by Avalon Marketing or its third party suppliers will comply with all local, state and federal laws regarding the sending of commercial email and does not constitute Spam.
III. Client shall provide Avalon Marketing any and all “Advertiser” suppression lists, including, without limitation, all opt-out names, for specific to offers or advertisements to be sent by Avalon Marketing pursuant to the terms of this Agreement. Client must provide Avalon Marketing with suppression lists (if applicable) seventy-two (72) hours in advance of any scheduled campaign deployment. Client shall also provide Avalon Marketing with an Internet-based opt-out mechanism, such as a functioning email address or opt-out URL, as well as an address for postal opt-outs.
If a compliance issue arises related to deployment of any campaign by Client, Avalon Marketing, in its sole discretion, shall determine whether or not the e-mail deployment complies with the CAN-SPAM Act and all applicable laws, rules and regulations and Avalon Marketing has the capacity to suspend or reject such campaign(s) deployment and may terminate services to Client.
1.4 Warranties; Limitation of Warranty and Liability
I. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 1.3 AND 1.4. OF THIS AGREEMENT, Avalon Marketing MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. Avalon Marketing SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OR AGAINST INFRINGEMENT. Avalon Marketing MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUCCESS OF CLIENT’S ADVERTISING CAMPAIGNS.
IN NO EVENT SHALL Avalon Marketing BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, WHETHER OR NOT Avalon Marketing HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH A LOSS, OR WHETHER THE CLAIM IS FOR BREACH OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. CLIENT ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE THE RECOVERY OF NO MORE THAN THE AMOUNT PAID BY CLIENT TO Avalon Marketing PURSUANT TO THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF Avalon Marketing ARISING OUT OF THESE TERMS AND CONDITIONS OF THIS AGREEMENT.
II. Avalon Marketing represents and warrants to Client that:
(a) Avalon Marketing holds the necessary rights to provide the Services, including any third-party software it uses in connection therewith, as required for the purposes of this Agreement;
(b) none of the materials provided by Avalon Marketing included in the Services to Client shall: (i) infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (iii) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing or (iv) be obscene or child pornographic;
(c) Avalon Marketing shall deliver the services as set forth each Order Contract and all services provided by Avalon Marketing will conform in all material respects to their applicable specifications or acceptance criteria set forth in each Order Contract; and
(d) there is no outstanding contract, commitment or agreement to which Avalon Marketing is a party or legal impediment of any kind known to Avalon Marketing which conflicts with this Agreement or might limit, restrict or impair the rights granted to Client hereunder.
III. Client represents and warrants to Avalon Marketing that:
(a) none of the materials, text, content, marks, or advertising trademarks, service marks and logos set forth therein provided by Client: (i) infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing or (iv) is obscene or child pornographic; and
(b) there is no outstanding contract, commitment or agreement to which Client is a party or legal impediment of any kind known to Client which conflicts with this Agreement or might limit, restrict or impair the rights granted to Avalon Marketing hereunder.
Avalon Marketing shall indemnify and shall hold harmless (including, without limitation, costs of court and reasonable attorney’s fees) Client and its officers and directors (each of the foregoing being hereinafter referred to individually as “Client Indemnified Party”) against all liability to third parties arising from or in connection with (i) third party claims arising from or related to Avalon Marketing’s breach of any representation or warranty in this Agreement or (ii) Avalon Marketing’s gross negligence, or willful misconduct. Avalon Marketing’s obligation to indemnify any Client Indemnified Party will survive the termination of the Term. Client shall promptly notify Avalon Marketing of any third party claim. Avalon Marketing may conduct the defense in any such third party action arising as described herein and Client shall provide reasonable cooperation with such defense; provided that Avalon Marketing remains obligated to indemnify each Client Indemnified Party whether or not such Client Indemnified Party notifies Avalon Marketing of such third party claim, unless and only to the extent that Avalon Marketing is prejudiced by any such failure of notification.
Client shall indemnify and shall hold harmless (including, without limitation, costs of court and reasonable attorney’s fees) Avalon Marketing and its officers and directors (each of the foregoing being hereinafter referred to individually as “Avalon Marketing Indemnified Party”) against all liability to third parties arising from or in connection with the violation by Client of any (i) third party claims arising from or related to Client’s breach of any representation or warranty in this Agreement or (ii) Client’s gross negligence, or willful misconduct. Client’s obligation to indemnify any Avalon Marketing Indemnified Party will survive the termination of the Term. Avalon Marketing shall promptly notify Client of any third party claim and Client may conduct the defense in any such third party action arising as described herein and Avalon Marketing promises to provide reasonable cooperation with such defense; provided that Client remains obligated to indemnify each Avalon Marketing Indemnified Party whether or not such Avalon Marketing Indemnified Party notifies Client of such third party claim, unless and only to the extent that Client is prejudiced by any such failure of notification.
1.6 Intellectual Property License; Ownership
Client hereby grants to Avalon Marketing a limited, non-exclusive, non-transferable license to use the materials, text, content, marks, or advertising trademarks, service marks and logos set forth therein provided to Avalon Marketing by Client to display advertisements and links as specified in a valid Order Contract in accordance with this Agreement. As and between Client and Avalon Marketing, Client shall retain ownership of the materials, text, content, marks, or advertising trademarks, service marks and logos set forth therein provided to Avalon Marketing by Client.
Avalon Marketing shall retain ownership of all of Avalon Marketing’s intellectual property, including, without limitation, Avalon Marketing’s data, systems, technology, and/or business materials identified as or incorporated into a data product or marketing service deliverable under this Agreement. Client shall not acquire any rights to any of Avalon Marketing’s intellectual property.
1.7 Advertising, Marketing, and Promotional Materials
Client hereby permits Avalon Marketing to identify Client in Avalon Marketing’s advertising, marketing, promotional materials, and on the Avalon MarketingELITE.com Web site (collectively referred to herein as the “Advertising Materials”). Client hereby grants Avalon Marketing a limited, royalty free, non-exclusive license to use any and all of Client’s trademarks, service marks, and/or logos (collectively, the “Trademarks”) so associated with Client’s name in all applicable Advertising Materials. Avalon Marketing’s right to use the Trademarks shall be limited to the Advertising Materials. Avalon Marketing acknowledges that, as and between Avalon Marketing and the Client, Client is the owner of the Trademarks.
In the event either Party breaches any of the provisions of this Agreement, the non-breaching Party may notify, by written notice to the breaching Party, the nature of such breach. If the breaching Party fails to correct the breach within five (5) days after such notice, the non-breaching Party shall have the right, but not the obligation, to terminate the Term immediately.
I. Amendments. The provisions of this Agreement may not be amended, supplemented, waived or changed orally, but only by a writing signed by the Party as to whom enforcement of any such amendment, supplement, waiver or modification is sought and making specific reference to this Agreement.
II. Binding Effect. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective legal representatives, successors and permitted assigns, whether so expressed or not.
III. Force Majeure. Each Party shall be excused from performance of its non-monetary obligations for any period and the time of any performance shall be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority (except as defined below), war, civil disturbance, court order, labor dispute, third party non-performance (including the acts or Avalon Marketingissions of any suppliers, agents or subcontractors) or any other cause beyond its reasonable control, including hurricanes, inclement weather, failures or fluctuations in electrical power, heat, light, air conditioning or telecommunication equipment or lines or any other equipment. Such non-performance shall not be a default under this Agreement or grounds for termination of this Agreement unless such non-performance is not cured within 60 days.
IV. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Client shall not solicit, induce, or attempt to solicit or induce any officer, director, or employee of Avalon Marketing or any of its subsidiaries, successors or assigns to terminate his, her or its employment or other relationship with Avalon Marketing or its subsidiaries, successors or assigns or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with Avalon Marketing or its subsidiaries, successors or assigns for any reason.
III. Severability. If any provision of this Agreement or any other agreement entered into pursuant hereto is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given full force and effect so far as possible.
IV. VIII. Governing Law. This Agreement and all transactions contemplated by this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York.
VII. Jurisdiction and Venue. The Parties acknowledge that a substantial portion of the negotiations, anticipated performance and execution of this Agreement occurred or shall occur in New York. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record of the State of New York or the United States District Court, Southern District of New York. Each Party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court
VIII. Third Parties. Unless expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties hereto and their respective legal representatives, successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any party to this Agreement.
IX. Notices. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including electronic transmission) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, electronically transmitted, or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested, addressed to:
If to Avalon Marketing:
25 Newbridge Road
Hicksville, NY 11801
or to such other address as either Party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery; and (b) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed.
XII. Right to Reject Advertisement. Avalon Marketing has the right to reject any of the materials, text, content, marks, or advertising trademarks, service marks and logos set forth therein provided to Avalon Marketing by Client, and to cancel any of Client’s advertisements in its sole discretion.
XII. Entire Agreement. This Agreement, each Insertion Order or Work Order executed in connection with this Agreement, and any Exhibits or other documents expressly incorporated herein or therein, represents the entire understanding and agreement between the Parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings and representations (if any) made by and between the Parties. In the event of any conflict between the terms and conditions of this Agreement and any Insertion Order or Work Order, the terms of this Agreement shall prevail.
The Parties have executed this Agreement as of the date first written above and are agreed to by signing Avalon Marketing’s estimate.