Last Updated Date: Jun 15, 2021
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (these “Standard Terms and Conditions”) apply to any Order Form (collectively, the “Agreement”) made by and between RevenueBase, Inc. and Customer for the provision of the Licensed Materials. In the event of a conflict between these Standard Terms and Conditions and the Order Form, the Order Form shall supersede.
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” (and its variants, including “controls,” “controlled by,” and “under common control with”) means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Applicable Law” means any applicable laws, rules or regulations (or similar guidance), including but not limited to Privacy Laws.
1.3. “Confidential Information” shall have the meaning set forth in Section 5.1.
1.4. “Customer” means the legal entity identified under the applicable Order Form.
1.5. “RevenueBase, Inc.” is the Parent Company of MJF Services LLC (DBA RevenueBase and CustomMade Data), its affiliates and their successor-in-interest.
1.6. “Disclosing Party” shall have the meaning set forth in Section 5.1.
1.7. “Force Majeure Event” shall have the meaning set forth in Section 9.3.
1.8. “Licensed Materials” means the publicly available electronic contact information of third parties provided by RevenueBase, Inc. to Customer in a standardized form, as further described in the applicable Order Form.
1.9. “Losses” shall have the meaning set forth in Section 4.1.
1.10. “Order Form” means the order form, cover page or other ordering document executed by and between RevenueBase, Inc. and Customer, that incorporates these Standard Terms and Conditions by reference.
1.11. “Privacy Laws” means all applicable laws and regulations with respect to the controlling and processing of personally identifiable information, including without limitation, California Consumer Privacy Act, CAN-SPAM Act of 2013, Telephone Consumer Protection Act of 1991, and General Data Protection Regulation.
1.12. “Receiving Party” shall have the meaning set forth in Section 5.1.
1.13. “Taxes” shall have the meaning set forth in Section 8.2.
1.14. “Third Party Claims” shall have the meaning set forth in Section 4.1
2. LICENSE; RESERVATION OF RIGHTS
2.1. Limited License to Use the Licensed Materials. Subject to Customer’s compliance with the terms and conditions of the Agreement, RevenueBase, Inc. hereby grants to Customer a limited, non-exclusive, non-transferable (except as provided hereunder), non-sublicensable, royalty-free license to use the Licensed Materials solely for the Customer’s own internal business purposes (e.g., marketing, sales, recruiting, or business development activities). Except for the licenses and rights expressly granted under the Agreement, no licenses or rights are granted by RevenueBase, Inc. to Customer hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved by RevenueBase, Inc..
2.2. Other License Restrictions. Customer shall not (i) reverse engineer, decompile, translate, disassemble or discover the source code for all or any portion of the Licensed Materials; or (ii) distribute, disclose, market, rent, lease or otherwise transfer the Licensed Materials to any other person or entity.
2.3. Intellectual Property Rights. Except for the limited license granted hereunder, RevenueBase, Inc.(or its licensors, as applicable) retains all intellectual property rights in and to the Licensed Materials and all related documentation (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. In addition, Customer hereby grants to RevenueBase, Inc. a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Licensed Materials any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Licensed Materials.
3. WARRANTIES AND LIMITATIONS OF LIABILITY.
3.1. Mutual Warranties. Each party represents and warrants to the other party that: (i) it has full power and authority to enter into the Agreement; (ii) the execution, delivery, and performance of the Agreement by it has been duly authorized by all necessary actions and do not violate its organizational documents; and (iii) it will comply with all Applicable Laws related to its provision, or use, of the Licensed Materials.
3.2. RevenueBase, Inc. Warranties. RevenueBase, Inc. represents and warrants that for thirty (30) days following delivery to Customer, the Licensed Materials shall be at least 90% accurate (e.g, contacts are employed by their listed companies, working email addresses, etc.). If within thirty (30) days following the delivery of the Licensed Materials, Customer notifies RevenueBase, Inc. that less than 90% of the Licensed Materials are accurate, then within thirty (30) days following such notice RevenueBase, Inc. shall use commercially reasonable efforts to modify the Licensed Materials to generate at least 90% accuracy. If RevenueBase, Inc. is unable to achieve at least 90% accuracy within those thirty (30) days than RevenueBase, Inc.’s sole and exclusive liability and Customer’s sole and exclusive remedy for a breach of this Section 3.2 shall be that Customer is entitled to a credit of 1% of the applicable fees paid by Customer for the applicable Licensed Materials for each 1% such Licensed Materials are below the 90% threshold, provided such credit shall not exceed 90%. Such credits shall be used to set off against any fees or other charges payable to RevenueBase, Inc. under the Agreement.
3.3. Warranty Disclaimer. EXCEPT AS SET FORTH IN THE AGREEMENT, THE LICENSED MATERIALS ARE PROVIDED “AS-IS” AND REVENUEBASE, INC. .DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE LICENSED MATERIALS OR ANY OTHER MATTER COVERED BY THESE STANDARD TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUALITY, TITLE AND NON-INFRINGEMENT.
3.4. Limitations of Liability. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY HEREUNDER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AND (II) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) $100,000, OR (B) THE AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTHS PRECEDING THE INCIDENT, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
3.5. Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 3 are an essential element of the Agreement between the parties and the parties would not have entered into the Agreement without such disclaimers and limitations.
4.1. Customer Indemnification. Customer shall indemnify, defend, and hold harmless RevenueBase, Inc., its Affiliates, and their directors, officers, employees, agents, successors and assigns from and against any damages, losses, liabilities, costs or expenses (including reasonable attorneys’ fees) (“Losses”) arising from any third party claim, cause of action, suit or proceeding (each a “Third Party Claim”) in connection with (i) Customer’s breach of the Agreement, or (ii) Customer’s infringement or misappropriation of the intellectual property rights of a third party.
4.2. RevenueBase, Inc. Indemnification. RevenueBase, Inc. shall indemnify, defend, and hold harmless Customer from and against any Losses to the extent arising out of any Third Party Claim in connection with an allegation that the creation or provision of the Licensed Materials by (i) violates Applicable Law, or (ii) infringes upon or misappropriates the intellectual property rights of such third party.
4.3. Procedures. The indemnifying party’s obligations in this Section 4 are subject to receiving (i) prompt written notice of the Third Party Claim following the indemnified party’s receipt thereof (provided, that any failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 4 except to the extent the indemnifying party’s defense of the Third Party Claim is materially prejudiced thereby), (ii) the exclusive right to control and direct the investigation, defense and settlement of the Third Party Claim, and (iii) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any Third Party Claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action. The indemnified party may participate in a Third Party Claim with its own counsel at its own expense.
5.1. Definition of Confidential Information. As used herein, “Confidential Information” means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, (ii) use any Confidential Information of the Disclosing Party solely to perform the Agreement or exercise rights hereunder, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.4. Deletion or Return of Confidential Information. Upon expiration or termination of the Agreement, or upon Disclosing Party’s written request, the Receiving Party will securely destroy or return to the Receiving Party all Confidential Information, and destroy existing copies unless Applicable Laws require storage of such Confidential Information, in which case the Receiving Party will isolate and protect that Confidential Information from any further use except to the extent required by Applicable Laws.
The parties consent and agree that the following publicly available personally identifiable information of third parties will be provided by RevenueBase, Inc. to Customer as part of the Licensed Materials: name, email address, phone number, job title, company name, company address, and Linkedin profile. RevenueBase, Inc. will cross reference against the United States’ “Do Not Call Registry” and “Do Not Track” lists to confirm it is permissible to share such information with Customer prior to doing so. If any relevant third parties opt-out from receiving marketing notifications after their information been shared with Customer, within three (3) business days upon becoming aware thereof RevenueBase shall notify Customer of such opt-out via email. The parties agree that they will both institute all necessary technical and organizational measures in accordance with Privacy Laws and industry standards to protect the personally identifiable information contained in the Licensed Materials. THE PERSONALLY IDENTIFIABLE INFORMATION COLLECTED BY REVENUEBASE, INC. . HAS NOT BEEN OPTED INTO. SUCH INFORMATION IS AVAILABLE FROM PUBLICLY IDENTIFIABLE SOURCES, AND REVENUEBASE, INC. HAS COLLECTED IT BY USING ITS OWN PROPRIETARY TECHNOLOGY, RESEARCH, AND/OR WITH THE SUPPORT OF THIRD PARTIES.
7. TERM AND TERMINATION
7.1. Term. The Agreement commences on the execution of the initial Order Form and shall continue until all Order Forms expire or are otherwise terminated as provided herein. Unless otherwise set forth in an applicable Order Form, if Customer subscribes to the Annual Subscription (as defined in the Order Form), such Order Form shall automatically renew for successive terms of the same length as the Order Form’s initial term, unless either party provides written notice of its intent not to renew no later than sixty (60) days prior to the expiration of the current OF Term (as defined in the Order Form). In the event such Order Form is renewed, RevenueBase, Inc. may increase the fees for the Annual Subscription no more than once per annum.
7.2. Termination for Cause. A party may terminate the Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3. Effect of Termination. Upon termination of the Agreement by RevenueBase, Inc. for Customer’s uncured material breach, Customer shall within thirty (30) days following the effective date of termination, as a reasonable estimate of the actual damages and not a penalty, pay an amount equal to the undisputed fees that would be due over the remainder of the then-current term under any terminated Order Forms. Upon termination of the Agreement by Customer for RevenueBase, Inc.’s uncured material breach, within thirty (30) days following the effective date of termination RevenueBase, Inc. shall refund any prepaid fees for undelivered Licensed Materials for the remainder of the then-current term under any terminated Order Forms. In no event will any termination relieve Customer of the obligation to pay the fees payable to RevenueBase, Inc. for the period prior to the effective date of termination.
7.4. Survival. The provisions that by their nature continue and survive, including 2.1 (Limited License to Use the Licensed Materials), 2.2 (Other License Restrictions), 3.3 (Warranty Disclaimer), 3.4 (Limitation of Liability), 3.5 (Essential Part of the Bargain), 4 (INDEMNIFICATION), 5 (CONFIDENTIALITY), 6 (PRIVACY), 7.3 (Termination for Cause), 7.4 (Effect of Termination), 8 (PAYMENT), and 9 (GENERAL).
8.1. Fees. Customer shall timely pay all fees stated in the applicable Order Form. Except as otherwise agreed to by the parties in the applicable Order Form, if any payment is not received from Customer when due, then, at RevenueBase, Inc.‘s discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date the payment was due until the date paid, and (ii) RevenueBase, Inc. may require future payments to be made in advance. If any amount owing under the Agreement is five (5) or more days past due, RevenueBase, Inc. may, without limiting RevenueBase, Inc.’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend Customer’s access to the Licensed Materials until such amounts are paid in full.
8.2. Taxes. Unless otherwise expressly stated, RevenueBase, Inc.’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value- added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases in connection with the Agreement. If RevenueBase, Inc. has the legal obligation to pay or collect Taxes for which Customer are responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides RevenueBase, Inc. with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, RevenueBase, Inc. is solely responsible for taxes assessable against it based on RevenueBase, Inc.’s income, property, and employees.
9.1. Export Compliance. Licensed Materials may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use Licensed Materials without prior written permission from RevenueBase, Inc. once granted by the appropriate jurisdiction. The rights and obligations of Customer shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. Customer each shall certify that it shall not, directly or indirectly, export, re-export or transship the Licensed Materials in such manner as to violate such laws and regulations in effect from time to time. Customer shall indemnify and hold harmless RevenueBase, Inc. from and against any and all losses, claims and expenses incurred by RevenueBase, Inc. as a result of the breach of Customer’s obligations under this Section.
9.2. Independent Contractors. In making and performing these Standard Terms and Conditions, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
9.3. Force Majeure. Neither party is liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) to the extent due to a strike by an unaffiliated third party, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster or other unforeseeable events of a similar nature beyond the reasonable control of the party affected; provided that such non-performance could not have been prevented by reasonable precautions (each a “Force Majeure Event”). The party affected by the Force Majeure Event shall diligently attempt to remove such cause or causes and shall promptly notify the other party of the existence of such Force Majeure Event and its probable duration.
9.4. Governing Law. The Agreement and its subject matter shall be governed in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of laws principles.
9.5. Public Statements. Either party may disclose the existence of the Agreement but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other; provided, however, Customer agrees that RevenueBase, Inc. may use Customer’s name and logo in customer lists onRevenueBase, Inc.’s website and in RevenueBase, Inc. promotional materials (any such activity to cease upon written request by Customer).
9.6. Assignment. Neither party may assign the Agreement without the prior written consent of the other party, except that either party may assign the Agreement to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. The assigning party must notify the other party in writing without undue delay of such transaction and shall provide all necessary information on the assignee. Any non-permitted assignment is void. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
9.7. Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by email, hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to the addresses set forth in the applicable Order Form.
9.8. Entire Agreement; Amendment. The Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. The Agreement may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties and attached hereto.
9.9. Waivers. A waiver by either party of a breach or violation of any provision of the Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of the Agreement.