These Master Terms and Conditions (these “MTC”) govern all acquisition and use of Services from DataBig, LLC., (“DataBig”) by the entity entering into an Order Form (such entity, “Client”).

 

1  Definitions.

1.1  “Client Content” means any data, information or material that Client delivers, or causes to be delivered, to DataBig, which may include Consumer Data.

1.2  “Consumer” means an individual who opts-in to receive marketing communications from Client, in a manner sufficient to comply with applicable law.

1.3  “Consumer Data” means the personal information provided by Consumers.  Client shall, on all of its websites and applications from which Consumer Data may be obtained, provide, in compliance with applicable laws, rules, and regulations, complete and accurate notice of its collection, use and disclosure practices with respect to Consumer Data (“Privacy Notices”).

1.4  “Documentation” means the written specifications and user instructions provided by DataBig regarding the Services, and explicitly does not include informal communications or advertisements.

1.5  “DataBig Materials” means all software, templates, Documentation, third party-sourced  data, and other intellectual property (but not Client Content) used by DataBig to provide the Services.

1.6  “Order Form” means a document signed by both Client and DataBig that specifies Services to be provided or made available to Client by DataBig.  An Order Form may also be labeled a “Statement of Work” or “SOW.”

1.7  “Professional Services” means Services that DataBig provides to Client, that are not Subscription Services.  Professional Services may be offered (a) as part of a defined package and subject to recurring billing; or (b) on an ad hoc basis and billed per the relevant Order Form on which they are ordered.

1.8  “Services” means all services provided by DataBig to Client, including Subscription Services and Professional Services.

1.9  “Subscription” means Client receiving access to one or more Services for a defined period, as specified on an Order Form.

1.10  “Subscription Services” means services that DataBig makes available to Client as part of a Subscription.

1.11  “Term” means the period during which an Order Form is in effect, as specified in the Order Form, subject to renewal or termination as specified below.

1.12 “Value-Added Content” means the analytical and historical information regarding Consumers or Client that is developed or collected by DataBig in connection with the Services (such as email open rates, effectiveness of offers, and offer redemption rates), but which is not Consumer Data.

 

2  Legal Compliance.

Both Client and DataBig will comply with all applicable federal, state and local laws, rules, and regulations (including common carrier communication tariffs) in their performance or exercise of their rights hereunder.  For clarity, it is understood that Client is responsible for ensuring that its use of the Services complies with applicable laws (including those of jurisdictions outside the United States, if Client accesses or uses the Services outside the United States).

 

3  Payment.

All charges will be due as specified in the applicable Order Form.  DataBig’s obligations to Client are conditioned on Client paying DataBig timely and in full.  Subscription fees are charged for access to the relevant Services, not actual use.  Unused access does not carry over to any period after the period in which it accrued.  All payments will be made via credit card, ACH, or check, as specified in the relevant Order Form.

3.1  Late Charges; Suspension of Services. DataBig may assess a late payment fee of 1½% per month on balances that Client does not pay on time (including as a result of a denied credit card or ACH or NSF check).  DataBig may immediately suspend its performance hereunder if any payment owed to it by Client remains unpaid more than ten (10) business days after delivery of a past due notice to Client.  DataBig will not impose interest or suspension if the fees in question are the subject of good faith dispute of which Client has notified DataBig and that Client is diligently working to resolve.

3.2  Taxes. Client will pay, or reimburse DataBig for, any taxes or similar liabilities levied on the Services or payments made to DataBig by Client, excluding taxes or similar liabilities chargeable against DataBig’s income or gross receipts.

3.3 Consumer Price Index (CPI). Except as otherwise provided in an applicable Schedule, recurring Fees are subject to an annual increase of 5% at the beginning of each Contract Year as defined in the respective Schedule..

 

4  Renewal; Termination.

4.1  Renewal.  Subscriptions auto-renew for successive one-year renewal Terms at the end of the then-current Term unless (a) otherwise specified in the relevant Order Form; or (b) either party notifies the other of non-renewal at least 60 days in advance of the expiration of the then-current Term.

4.2  Termination for Breach. Either party may immediately terminate any or all Order Forms, Subscriptions, and/or Statements of Work by written notice to the other party, if the other party: (i) breaches a material obligation, representation, or warranty to the terminating party and fails to cure that breach within thirty (30) days of receiving written notice from the terminating party; or (ii) terminates or suspends its business.

4.3  Return of Materials. After the expiration of all applicable regulatory requirements, DataBig will deliver or make available to Client a copy of the Consumer Data in a commonly accessible data format.  Upon DataBig’s receipt of all amounts owed to it by Client, DataBig will deliver or make available to Client a copy of the Value-Added Content.  If Client fails to pay all undisputed amounts owed to DataBig within sixty (60) days after termination or expiration, and any disputed amounts within fifteen (15) days after the final resolution of such dispute, Client will no longer have any rights to the Value-Added Content and DataBig may remove from its systems and archive or destroy any Value-Added Content.  Except as provided above, each party will, on termination or expiration, immediately return to the other party all papers, materials and other properties of the other party.

4.4  Survival. Any obligations accrued prior to termination, such as payment obligations as described in Section 3, and the following sections will continue in full force and effect after an Order Form has expired or been terminated: 1, 3, 4.3, 4.4, 5.3, and 6 through 10.

 

5  Warranties.

5.1  DataBig’s Warranties. DataBig warrants that (a) the Professional Services will be performed by qualified personnel in a commercially reasonable manner materially in accordance with any requirements or specifications included in any Order Form; and (b) Subscription Services will conform to the applicable Documentation.  DataBig further warrants that it will use reasonable efforts to minimize the duration and impact of any unscheduled maintenance on access to or use of any Subscription Services.  Client’s sole remedy for any breach of these warranties shall be prompt re-performance of the relevant Services by DataBig, or if such re-performance is not promptly and successfully completed, a refund of any fees paid in respect of such Services.  Client is responsible for the accuracy of materials and information that it provides to DataBig or sends via DataBig’s systems pursuant to a Subscription.

5.2  Client’s Warranties. Client warrants that it will maintain during the Term all necessary rights, licenses, consents, waivers and permissions from Consumers, advertisers, and others to allow DataBig to manage Consumer Data and otherwise provide Services on Client’s behalf and to use any Consumer Data or Client Content in accordance with these MTC and any Order Form.

5.3  Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.

 

6  Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) NEITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS (INCLUDING SERVICE PROVIDERS) WILL BE LIABLE FOR ANY DAMAGES HEREUNDER OTHER THAN DIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY; AND (B) IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS (INCLUDING SERVICE PROVIDERS) EXCEED THE FEES THAT CLIENT PAID OR OWED TO DataBig DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE APPLICABLE CAUSE OF ACTION.

 

7  Indemnification. 

7.1  Each party (“Indemnitor”) will indemnify and defend the other party (“Indemnitee”), its respective officers, directors, employees, agents, heirs, successors in interest, and affiliated entities (each an “Indemnified Party”) from and against any and all liabilities, losses, damages, claims, and expenses, including reasonable legal fees awarded to a third party (or agreed to in a settlement with a third party) to the extent arising out of third party claims (i) alleging that materials provided by Indemnitor, when used as authorized by Indemnitor, infringe that third party’s proprietary rights; or (ii) resulting from Indemnitee’s violation of any applicable law, rule, or regulation as a result of Indemnitor’s wrongful actions or inactions.  Indemnitee will notify Indemnitor promptly about any claim for which any Indemnified Party seeks indemnification (each, a “Claim”), will give Indemnitor sole control of the defense and settlement of the Claim, and will cooperate with Indemnitor in connection with such defense and settlement.  Indemnitor may defend or settle any Claim, in its sole discretion, with counsel of its own choosing, provided that any settlement includes a full release of all Indemnified Parties.

7.2  Indemnitor will have no obligation to indemnify any Indemnified Party to the extent that the Claim results from such Indemnified Party’s (i) misuse or modification of the materials and/or information that are the subject of the claim (the “Subject Materials”); (ii) failure to use Indemnitor’s corrections or enhancements to the Subject Materials that have been made available to Indemnitee, or cease use of the Subject Materials once the authorization of Indemnitee to use the Subject Materials has ended; (iii) use of the Subject Materials in combination with any materials not provided by Indemnitor; or (iv) operation or use of the Subject Materials in a manner not authorized by the Indemnitor.

 

8  Intellectual Property.

8.1  Retained Ownership. DataBig Materials are and will remain DataBig’s property.  Client Content and Consumer Data are and will remain Client’s property.  DataBig shall have the perpetual, non-exclusive right, royalty-free right and license to use the Client Content and Consumer Data in connection with its business and this Agreement, subject to any applicable confidentiality restrictions herein and provided that no use by DataBig of such Client Content or Consumer Data, other than in the performance of Services hereunder, will associate or identify Client with such use by DataBig of Client Content or Consumer Data, except as required by law.  Any restrictions herein on Consumer Data will not apply to information DataBig obtains about a Consumer in connection with its delivery of services to another client or through means unrelated to the services provided to Client hereunder.

8.2  Value-Added Content.  Upon payment in full of all associated fees owed to DataBig, DataBig hereby grants to Client a perpetual, non-exclusive, royalty-free, transferable license to use the Value-Added Content in any way, other than the DataBig Materials that may be incorporated into the Value-Added Content.  If DataBig incorporates the DataBig Materials into the Value-Added Content, DataBig grants to Client a perpetual, non-exclusive, royalty-free, non-transferable license to use those DataBig Materials as incorporated into such Value-Added Content as delivered to Client.

 

9  Confidential Information.

9.1  Confidential Information.   A party (“Owner”) may give to the other party (“Recipient”) access to its confidential information, directly or indirectly, in writing, by inspection, or orally.  All information that the parties exchange will be considered “Confidential Information” unless Owner tells Recipient that the information is not Confidential Information, or the information otherwise fits into one of the following exceptions.  Confidential Information does not include any information which (i) is publicly known other than by Recipient’s action or inaction; (ii) Recipient already possesses, or receives, without restriction; or (iii) Recipient can show it independently developed. By disclosing Confidential Information, Owner does not grant Recipient any express or implied right to the Confidential Information.

9.2  Disclosure and Use. For so long as Owner’s Confidential Information remains Confidential Information, the Recipient will (i) not disclose or use any of the Confidential Information other than as authorized hereunder; (ii)  protect the Confidential Information, using the same measures that Recipient takes to protect its own Confidential Information; and (iii) notify Owner immediately if Recipient discovers any unauthorized disclosure of such Confidential Information.

9.3  Obligations on Termination. On termination of the applicable Order Forms, each party will destroy all copies of the other party’s Confidential Information and certify that destruction, except each party may retain copies (i) as required for compliance and enforcement purposes; (ii) contained in system backups, archives, or otherwise relatively inaccessible; and (iii) as otherwise authorized herein, provided that any such retained copies remain subject to these protections in perpetuity, even after termination or expiration of these MTC or any Order Form.

9.4  Data Security.  DataBig will maintain reasonable administrative, physical, and technical safeguards for protection of Consumer Data within its control, as described in the Documentation.  Client is responsible for the security of its passwords, user names, and other methods Client uses to access the Services (collectively, “Credentials”), and is responsible for all use of the Credentials.

9.5  Unassociated Data.  DataBig is authorized to use aggregated and anonymized Consumer Data, data contained in the Client Content that does not contain personal information or otherwise identify Client or a Consumer, and results from the use of its Services (“Unassociated Data”) for any purpose, including benchmarking and statistical analysis, and may share Unassociated Data with third parties for their use.  DataBig will not disclose any Unassociated Data or information that could identify the Client or a Consumer as being associated with such Unassociated Data.

 

10  General.

10.1  Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas and the federal laws of the United States of America. Client hereby consents and submits to the jurisdiction and forum of the state and federal courts in the State of Kansas in all questions and controversies arising out of this Agreement. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.

10.2  Force Majeure.  A party will not be liable to the other should its performance be delayed by circumstances beyond its reasonable control (“Force Majeure Event”), provided that the affected party uses its best commercially reasonable efforts to resume performance promptly.

10.3  Integration and Precedence. These MTC and the Order Forms which incorporate them, constitute the entire agreement between the parties regarding those topics covered in these MTC and any Order Forms.  If there is a conflict between these MTC and an Order Form, the Order Form will supersede these MTC, but only with respect to such Order Form.

10.4  Independent Contractor. Each of the parties to these MTC is an independent contractor and neither is an agent, distributor or representative of the other.  Neither party will represent itself as an agent of the other or assume or create any obligation in the name of the other.

10.5  Non-recruitment.  During the Term and for a period of one (1) year thereafter neither party may hire any employee of the other or solicit an employee to leave the employ of the other party.

10.6  Assignment.  A party may not assign or otherwise transfer its rights or obligations under these MTC or any Order Form without the prior written consent of the other party, except in connection with a merger, acquisition, or transfer of all or substantially all of such party’s assets.

10.7  Miscellaneous. All notices hereunder must be in writing to the other party at its designated address via nationally-known express delivery and deemed given the next business day after actual delivery.  No waiver of any right or remedy on one occasion will be deemed a waiver of that right or remedy on any other occasion.  If a provision of these MTC or any Order Form hereunder is declared or found to be unenforceable or void, that provision will be void but all others will remain in force.  DataBig may update these MTC at any time, provided that any such updates are applicable to DataBig’s clients generally and not specific to Client.  All other amendments must be in writing and signed by both parties.