EMAIL DISTRIBUTION SERVICES AGREEMENT
Effective as of the date this Agreement is last executed (the “Effective Date”).
This Email Distribution Services Agreement (the “Agreement”) sets forth the terms and conditions under which Great American Publishing, Inc. d/b/a Great American Media Services (“Great American”), which includes all of Great American’s brands, will provide certain email distribution services for Client as may from time to time be mutually agreed upon by the parties (“Services”).
This Agreement is comprised of this Signature Page, the attached General Terms and Conditions, attached, and any signed contracts for e-mail distribution services.
The parties have executed this Agreement as of the dates set forth their respective signatures.
GENERAL TERMS AND CONDITIONS
Each of the following definitions shall be equally applicable to the singular and plural forms of the terms defined. As used in this Agreement:
“CASL” means the Canada Anti-Spam Legislation and any regulations or changes promulgated thereunder.
“CAN-SPAM Act” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 7701-13), and any regulations promulgated thereunder
“Confidential Information” means and includes information regarding either party’s business, operations or activities that is not publicly available and that is: (a) first disclosed in written, electronic, photographic or other tangible form and conspicuously marked “Confidential” or “Proprietary” or the like; or (b) first disclosed in non-tangible form and orally identified as confidential or proprietary at the time of disclosure and is summarized in tangible form and conspicuously marked “Confidential” or “Proprietary” or the like within 30 days of the original disclosure.
“GDPR” means the General Data Protection Regulation (EU) 2016/679, effective May 25, 2018.
“Intellectual Property” means domain names, company names, patents, trademarks, trade names, trade dress, copyrights, trade secrets, know-how, concepts, ideas, discoveries, inventions (whether or not patentable), processes, developments, suggestions, materials, improvements, works of authorship, artwork, software, documentation, or intellectual property of a proprietary nature, and the like.
“Intellectual Property Rights” means rights in and to, including the right to assign, lease or transfer, domain names, company names, patents, trademarks, trade names, trade dress, copyrights, trade secrets, know-how, concepts, ideas, discoveries, inventions (whether or not patentable), processes, developments, suggestions, materials, improvements, works of authorship, artwork, software, documentation, intellectual property, rights in other tangible and intangible assets of a proprietary nature, and the like.
“IP Address” means a numerical identification and logical address that is assigned to devices participating in a computer network utilizing the Internet Protocol’s set of rules, which govern the format of data sent over the Internet or other network.
“Message Content” means information which is provided by a Client to Great American for distribution under this Agreement, including, but not limited to, audio and visual information, text, documents, and offers for products and services.
“Sender” means “sender” as defined under the CAN-SPAM Act.
“Statement of Work” shall have the meaning set forth in Section 2.
“Trademarks” means all rights in and to, including the right to assign, lease or transfer, US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
2.1 Statements of Work. Great American agrees to provide certain professional services as described on separately executed work orders (each a “Statement of Work” or “SOW”), as may from time to time be entered into hereunder. Each Statement of Work shall be substantially in the form attached as Schedule A and shall describe the services to be performed by Great American under this Agreement, applicable pricing and payment terms, and other appropriate terms and conditions.
2.2 Conflict. Each Statement of Work shall be governed by the terms and conditions of this Agreement. If there is a conflict between this Agreement and any Statement of Work, the terms of the Statement of Work shall control.
2.3 Exclusions. Great American does not purport to extend its professional services to any recipient outside the United States of America (“U.S.”), who uses a non-U.S.-based internet service provider or who uses a computer system located outside the U.S. to access electronic messages.
Client grants to Great American a nonexclusive, perpetual, worldwide, nontransferable (except as otherwise permitted under Section 12.5) license to use the Message Content to provide the Services under this Agreement. All Message Content is subject to review and approval by Great American. Great American reserves the right to reject any Message Content.
4.1 Sender. Client agrees that for purposes of the CAN-SPAM Act it is the Sender of Message Content and is responsible for complying with the duties assigned to Senders under the CAN-SPAM Act.
4.2 Prohibited Activities. Client agrees that Message Content shall not sell, market, advertise either directly or indirectly or link to a message or website that advertises for any firearms, alcoholic beverages or products, tobacco, gambling or gambling services, illegal drugs, pornography or obscene material, prostitution, or any other product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving, including any items prohibited under California Business & Professional Code §22580(i).
4.3 Compliance with Law. Client shall ensure that all Message Content complies with applicable law, including but not limited to the CAN-SPAM Act and all laws governing advertising content including, but not limited to, the Federal Trade Commission Act and the Lanham Act.
4.4 From and Subject Line Information. Client shall specify “From” line and “Subject” line or heading information to be used with the Message Content that is not false, deceptive or misleading to recipients.
4.5 Physical Address. Client shall provide a valid physical postal address within the body of the Message Content.
4.6 Use of Opt Out Lists
4.6.1 In line with Client’s responsibilities to comply with CAN-SPAM and its opt-out requirements, Client shall provide to Great American the email addresses of any individuals who have opted out of receiving email communications from Client, so that Great American may strike such addresses from the email distribution list it uses to distribute the Client’s messages pursuant to this Agreement. Great American may not use the Client Opt-Out List for any other purpose. The names of any individuals or entities that voluntarily opt-out of receiving Client emails must be provided to Great American within 5 calendar days of Client receiving the opt-out request.
4.6.2 After distributing a Client’s message, Great American will provide to Client the Great American Opt-Out List for the sole purpose of complying with CAN-SPAM, which Client may use for the sole purpose of limiting its future email or other electronic communications to email addresses included on the List. Client may not use the Great American Opt-Out List for any other purpose including Client may not sell or transfer the information in the form of a mailing or other list.
4.7 License to Certain Client Intellectual Property. Subject to and in accordance with this Agreement, Client has rights to any Intellectual Property or Trademarks contained in any and all Message Content and grants Great American a limited, non-exclusive, royalty-free, non-transferrable worldwide license during the term of the Agreement to use, solely in connection with performing any SOW: (a) Client’s Intellectual Property and/or Trademarks; (b) Client’s domain names, website addresses, websites, and URL’s; (c) Intellectual Property and/or Trademarks contained in any Message Content and provided to Great American for distribution or use; and (d) any Intellectual Property or Trademarks created by Great American on Client’s behalf as part of performing any SOW. Client grants no other right or license to any Client Intellectual Property or Trademarks by implication, estoppel or otherwise.
4.8 Personal Identifying Information. The Client will not provide or otherwise transfer to Great American any “Personal Identifying Information,” “Personal Protected Information” or “Personal Information” of any individuals as that phrase is defined under the GDPR or federal or state law, including, Michigan’s Identity Theft Protect Act, Act 452 Section 445.63(q)-(r). To the extent the Client does provide Great American such information, it will defend, and hold Great American harmless from and against any and all losses, claims, liability, etc., arising out of its providing or transferring such information.
4.9 CASL. The Client will not provide Great American with information, including email, personal, or contact information, for any individual or entity residing in Canada or having an IP Address in Canada.
4.10 GDPR. The Client will not provide Great American with information, including email, personal, or contact information, for any individual outside the U.S., including, but not limited to, individuals in the European Economic Area or having an IP Address outside the U.S.
4.11 To the extent “Personal Identifying Information,” “Personal Protected Information” or “Personal Information” of any individuals as that phrase is defined under the GDPR, federal or state law, including, Michigan’s Identity Theft Protect Act, Act 452 Section 445.63(q)-(r), is provided by Great American to Client in click reports, which are reports generated for some Client identifying the individuals who clicked on or otherwise interacted with an email provided to an individual by Client or by Great American on a Client’s behalf, Client will not use, process, collect, distribute or copy that information for any purpose other than Client may review to determine if it wishes to provide additional marketing information or materials to a particular person. After review, the Client must immediately destroy or render unreadable such information.
4.12 To the extent Great American provides Client with any information that personally identifies an individual as having purchased, leased, rented, or borrowed written books or other written materials, including magazines (“Subscriber Information”), Client will not provide , disclose or otherwise transfer any such Subscriber Information to any individual or entity. To the extent Client does provide, disclose or otherwise transfer such Subscriber Information, it will defend, and hold Great American harmless from and against any and all losses, claims, liability, etc., arising out of its providing, disclosing or transferring such Subscriber Information.
5.1 Functional E-mail Address: Unless the Client specifies a return email address to be used, Great American will ensure that any message it transmits pursuant to this Agreement will contain a functioning return email address. However, if Client specifies a return email address to be used, then Client will be responsible for ensuring that such email address is functional.
5.2 Opt-Out. Great American will ensure that any marketing message that it sends pursuant to this Agreement includes a functional mechanism that allows a recipient to opt out of receiving future marketing e-mail messages from Client and that any opt-out request is honored within 10 business days of the opt-out request. For up to 30 calendar days after sending Client’s message, Great American will collect opt-out requests related to such message (“Great American Opt-Out List”) and will apply any such requests to the mailing list that Great American uses to provide Services to Client under this Agreement. In connection with this 30-day collection period, Great American will forward to Client on a weekly basis (Wi-Fi necessary) an updated Great American Opt-Out List for the Client’s CAN-SPAM Act compliance purposes.
5.3 Performance. Great American is not responsible for the performance of the email campaign and does not provide any warranties or promises regarding the results of any email campaign. The success rate of the email campaign depends on many factors outside of Great American’s control.
5.4 Client’s Intellectual Property. Great American acknowledges that Client owns all right, title, and interest in, to and under the Client’s Intellectual Property and that Great American shall not acquire any proprietary rights therein. Any use by Great American or any representative of Great American of any of Client’s Intellectual Property and all goodwill associated therewith shall inure to the benefit of Client.
6.1 Term. This Agreement shall remain in effect until terminated by either party as provided in this Agreement. Each Statement of Work shall remain in effect until it has expired on its own terms or the services described therein have been completed.
6.2 Termination by Either Party. This Agreement or any Statement of Work may be terminated by either party if the other party:
6.2.1 Fails to perform any of its material obligations under this Agreement or any Statement of Work and fails to correct such failure within 20 days after receipt of written notice.
6.2.2 Ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors.
6.2.3 Becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization and such proceeding is not dismissed within 90 days after it is commenced.
6.3 Termination for Convenience. Either party may terminate this Agreement upon 30 days’ written notice to the other party at any time that no Statement of Work is then in effect.
6.4 Effect of Termination. Upon termination or expiration of this Agreement or any Statement of Work, Client shall pay Great American for all Services completed by Great American prior to the termination date and each party shall return to the other party any and all Confidential Information of that party.
6.5 Survival of Terms. Upon termination of this Agreement, the provisions of this Agreement providing for the payment of fees and expenses (that accrued prior to termination), warranties, limitation of liability, protection of Confidential Information, indemnification and the miscellaneous provisions shall continue and survive in full force and effect.
6.6 Force Majeure. No Party shall be liable or responsible to the other, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling the any term of this Agreement (except for Client’s obligation to pay Great American under this Agreement, when and to the extend the failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest; (d) national or regional emergency; (e) compliance with any government order, rule, regulation, or any action taken by a governmental authority; (f) cybercriminal espionage, hacking or interference; (g) shortage of adequate power or telecommunications capabilities; or (h) any other event that is beyond the reasonable control of such party (each of the foregoing is a “Force Majeure Event”). A Party whose performance is affected by a Force Majeure Event shall give notice to the other party stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure to delay and minimize the effects of the Force Majeure Event. During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance.
7.1 Services. The Services provided by Great American shall be at the pricing stated in the applicable Statement of Work.
7.2 Invoices. Unless otherwise provided in the Statement of Work, Great American shall have no obligation to perform any of the duties or provide any of the Services under this Agreement until it has received payment in full of the amount provided in the Statement of Work.
7.3 Invoice Disputes. Client shall notify Great American in writing of any dispute with an invoice along with substantiating documentation/a reasonably detailed description of the dispute within 20 business days from the Client’s receipt of such invoice. Client will be deemed to have accepted all invoices for which Great American does not receive timely notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth in the applicable Statement of Work. The Client and Great American shall seek to resolve all such disputes expeditiously and in good faith. Except for invoiced payments that Client has successfully disputed, Client shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 7% per month or the highest rate permissible under applicable law. Client shall also reimburse Great American for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
7.4 Taxes. Great American’s rates and charges do not include any amounts for taxes, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any taxing authority on such amounts. Client agrees to pay all applicable taxes levied by any tax authority based upon this Agreement, any Statement of Work and/or any Services performed by Great American, excluding any taxes based upon Great American’s income.
8.1 Services. Great American warrants that the Services provided under this Agreement will be performed in a workmanlike manner. Client shall notify Great American in writing of any breach of this warranty within 30 days after completion of the Services. Great American’s sole obligation to Client, and Client’s exclusive remedy for breach of this warranty, is re-performance of the service.
8.2 Disclaimer. THE WARRANTY SET FORTH IN SECTION 8.1 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. GREAT AMERICAN EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
9.1 MAXIMUM LIABILITY. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING LIMITATION SHALL NOT APPLY TO CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.
9.2 EXCLUSIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL NOT APPLY TO CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.
10.1 Nondisclosure. Except as otherwise provided in this Agreement, each party agrees that it shall not use or disclose to any third party any Confidential Information of the other party for any reason, except to its employees who require such knowledge in the ordinary course of their employment. Each party shall take all necessary action to ensure that its employees comply with the confidentiality provisions of this Section 10.
10.2 Exceptions. The obligations set forth in this Section 10 shall not apply to any information that (a) is publicly available; (b) is obtained by the receiving party from a third party as a matter of right; (c) is already known or independently developed by the receiving party; or (d) is required to be disclosed by law.
10.3 Injunctive Relief. Great American and Client agree that in the event of any breach of Section 10, monetary damages are not a sufficient remedy or protection for the aggrieved party, and that the aggrieved party shall be entitled to injunction or other relief as may be deemed proper or necessary by a court of competent jurisdiction.
11.1 Warranty. Client represents and warrants to Great American that Client owns the Message Content, including all associated Intellectual Property Rights, Trademarks or otherwise has the right to grant Great American the right and license provided in this Agreement, and that to the best of its knowledge the Message Content does not infringe any valid Intellectual Property Rights or Trademarks.
11.2 Indemnification. Client shall defend, indemnify, and hold harmless Great American, its affiliates and their officers, directors, agents, employees, and authorized users from and against any liability, claim, action, loss, damage, or expense (including court costs, attorney’s fees, and any regulatory penalties) arising out of, or relating to, Great American’s use of the Message Content in connection with the Services provided in conformance with the terms of this Agreement or Client’s failure to comply with CAN-SPAM requirements, including its opt-out requirements or CASL and its GDPR requirements. Great American agrees to promptly notify Client as soon as it becomes aware of any claim and agrees to cooperate with Client with respect to the defense and disposition of such claim.
12.1 Independent Contractor. Great American is an independent contractor and nothing in this Agreement shall be deemed to make Great American an agent, employee or joint venturer of Client.
12.2 Excusable Delays. Neither party shall incur liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, excluding payment obligations, where such failure is caused in whole or in part by events, occurrences, or causes beyond the reasonable control of the party, provided that such party has taken reasonable steps to mitigate the effects of such delay.
12.3 Notices. All notices given under this Agreement shall be in writing and mailed by regular first-class mail or expedited mail service, postage prepaid, and addressed to the parties at the addresses set forth above or at such other addresses as the parties may designate in writing.
12.4 Amendment. No provision of this Agreement may be modified except by a written document signed by a duly authorized representative of each party.
12.5 Assignment. Client shall not assign or delegate any of its rights or obligations under this Agreement without the prior written consent of Great American.
12.6 Waiver. No provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach of the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
12.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Great American and Client and their respective legal representatives, successors and authorized assigns. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy or any nature whatsoever under or by reason of this Agreement.
12.8 Severability. If any provision of this Agreement shall be prohibited or unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions.
12.9 Governing Law and Venue. This Agreement shall be governed by and interpreted according to the laws of the State of Michigan, without regard to conflicts of law principles. It shall not be governed by the United Nations Convention on the International Sale of Goods. Any action or legal proceeding concerning this Agreement shall be brought in the state or federal courts located in Kent County, Michigan.
12.10 Statute of Limitations. No party may commence an action under this Agreement more than 2 years after the expiration of its term, or, in the event of a breach, more than 2 years after the occurrence of the breach, or, in the event the breach is not discovered by the injured party when it has occurred, more than 2 years after the breach could, in the exercise of due diligence, have been discovered by such party.
12.11 Waiver of Jury Trial. Client and Great American each separately and individually acknowledge and agree that any controversy that may arise under this Agreement, including any Statements of Work, exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any Statements of Work, exhibits, schedules, attachments, or appendices attached to this Agreement, or the transactions contemplated hereby.
12.12 Legal Expenses. If any action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
12.13 Counterparts. This Agreement may be executed simultaneously, in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
12.14 Executable by Facsimile. Any signature of this Agreement or any Schedule through facsimile shall constitute execution of the Agreement or Schedule by such party.
12.14 Entire Agreement. This Agreement, including all Statements of Work, constitutes the entire agreement between Great American and Client with respect to the subject matter of this Agreement and supersedes all earlier agreements and understandings, oral and written, between the parties. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. The terms and conditions of any purchase order or other instrument issued by Client that are in addition to or inconsistent with this Agreement shall be of no effect and shall not be binding on Great American.
TERMS AND CONDITIONS (Mailing List Rental)
1. Customer Acknowledgment: Customer acknowledges that Great American Publishing Inc dba Great American Media Services’ (GAP) Data (defined below) are the property of GAP, or its list owners.
Customer recognizes that the GAP Data may be subject to the copyright and property rights of GAP or its list owners. Customer agrees not to in any manner use, sell, license, publish, lease, rent, or permit any other party to use (collectively to “use”) the GAP Data, other than as specifically authorized and permitted by the Service Agreement. Customer agrees not to provide the GAP Data or permit to use the GAP Data for any parent, subsidiary, affiliate, franchise, or dealer to the Customer, unless otherwise agreed to in writing. For purposes of these Terms and Conditions and the Service Agreement, “Data” shall mean and include all tangible and intangible information, trade secrets, materials, products, technology (including computer programs, computer software and hardware products, data bases, data processing and communications networking systems), personally-identifiable information, specifications, drawings, designs, manuals, business plans, strategies, forecasts or forecast assumptions, operations, methods of doing business, software, marketing plans, records, financial information, assets, intellectual property, pricing, desire for sellers product/service, Customers/subscribers (including identities, characteristics and activities), information that reveal the research, technology, practices, procedures, processes, mythologies, know how, or other systems or controls by which GAP’s existing or future products, services, applications and methods of operations or doing business are developed, conducted or operated, and all information or materials derived there from or based thereon, and other information being disclosed or submitted in any form or medium (and without regard to whether the information is owned by GAP or by a third party) including, but not limited to, orally, visually, in writing, or by any other media, by GAP to Customer in connection with Service Agreement.
2. Authorized Use: GAP authorizes Customer to use the GAP Data for the purposes described in these Terms and Conditions, for the confidential and personal use of the Customer’s operation only. If multiple use is not specifically described in these Terms and Conditions, Customer may only use the GAP Data one time within one-hundred-twenty (120) days after the date of the effective data of these Terms and Conditions. If multiple use is specifically described in these Terms and Conditions, Customer usage of GAP Data may not exceed one year from the date of these Terms and Conditions unless renewed. Upon completion of the authorized use of the GAP Data, Customer and any third-party processor, shall delete all GAP Data from its servers, hard drives, mobile drives, databases files, and anywhere it GAP Data may be stored or otherwise retained, and return all copies of the GAP Data to GAP and cease any and all use of the GAP Data.
3. Customer Limitations: Notwithstanding any other provisions of these Terms and Conditions and the Service Agreement, except with the written consent of GAP, Customer shall not:
a. Sublicense any GAP Data or otherwise permit any use of the GAP Data n by or for the
benefit of any party other than the Customer;
b. Publish, distribute, or permit disclosure of the GAP Data other than to employees and agents of the Customer for use in the Customer’s business who are under confidentiality agreements or policy requirements that ensure the same level of privacy and non-disclosure of the GAP Data as these Terms and Conditions;
c. Use or permit use of the GAP Data for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from the Database, mailing list, geographic or trade directories, classified directories, classified advertising, or other compilation of information that is sold, rented, published, furnished or in any manner provided to any third party;
d. Use or permit use of any GAP Data for generating any statistical information which is sold, rented, published, furnished or in any manner provided to a third party;
e. Use or permit use of GAP Data to prepare any comparison to other information databases, which is sold, rented, published, furnished, or in any manner provided to any third party.
f. Use or permit use of GAP Data in violation of any federal, state, or local law, rule, regulation, or law, or for any unlawful purpose.
4. Clarification: In clarification of the foregoing Customer Limitation, and not in limitation thereof, Customer shall not use any part of GAP Data to rerent, resell or otherwise provide to any other party even if Customer has verified the information or added to or deleted from the GAP date from telephone, direct-mail, or any other way; if the Customer is a publisher, the GAP information may be used only as an aid in adding to the Customers database. The publisher cannot use any part of the GAP Data to rerent, resell or otherwise provide the information to any third party even if the Customer has verified, added to or deleted from the GAP information by telephone, direct-mail or any other way.
5. Limited Warranty: The GAP Data is compiled from several sources. The GAP Datadoes contain a number of fictitious “seed” listings for security purposes. GAP does not assure the correctness or completeness of the GAP Data, and GAP shall not be liable for any loss or injury caused in whole or in part by contingencies beyond its control. In no event shall GAP be liable for loss of profits or direct or indirect, incidental or consequential damages of any nature whatsoever (even if GAP has been advised of the possibility of such damages), or any damages caused wholly or in part by GAP’s negligence or failure to fulfill its responsibilities hereunder. In any event, GAP’s liability shall be limited to the return to the Customer of sums paid for the GAP Data.
6. Distribution Approval: GAP reserves the right to require Customer to secure GAP’s advance approval of any materials that Customer proposes to mail or otherwise distribute to any names or addresses provided by GAP.
7. Processor Agreement: The GAP Data may be furnished to an outside or third-party processor only after:
a. GAP has approved the third party processor in writing to the Customer;
b. GAP has received a data processor agreement reviewed as sufficient by GAP and duly executed by the third party processor; and
c. GAP has given written authorization to Customer to allow processor access to the GAP information for Customers processing; subject to all the terms, conditions, limitations, and restrictions in this Agreement.
8. Breach Incident:
8.1 In the event Customer discovers, is notified of, or becomes aware of a Breach Incident (defined below), Customer will, within 48 hours of discovering the Breach Incident, notify GAP in writing. That written notice contain the following: (A) facts of the Breach Incident, including date of discovery, date range of unauthorized activity, and remediation and mitigation activities; (B) a description of the categories and approximate number of Data Subject (defined below) affected, as well as the categories and approximate number of records containing Personal Data (defined below) affected by the Data Breach; (C) the name and contact details of any data protection officer or information technology professional appointed by Customer to respond to the Data Breach; and (D) Customer’s assessment, developed through reasonable diligence, of the likely consequences of the Breach Incident with respect to the affected Personal Data and Data Subjects.
8.2 Customer shall assist GAP in meeting GAP’s Article 34 of the GDPR responsibilities or other legal breach notification reuqirements to advice Data Subjects when there has been a Data Breach. Customer agrees it will assist and facilitate GAP’s investigation of any Data Breach Customer has notified GAP of, or which GAP reasonably identifies as connected to Customer. If Customer determines that any Personal Data Breach must be disclosed to a third party, including Data Subjects or governmental authorities (including, but not limited to, any data protection authorities in the European Union or the European Economic Area), then Customer shall fully cooperate with and assist GAP in fulfilling GAP’s reporting and disclosure obligations.
8.3 To the extent any Data Breach arises out of or is connected to a breach by Customer’s personnel of Customer’s obligations, Customer shall bear (A) the costs incurred by Customer and Customer in complying with their legal obligations relating to such breach, and (B) in addition to any other damages for which Customer may be liable, the following costs incurred by GAP in responding to such breach, to the extent applicable: (1) the cost of providing notice to affected Data Subjects; (2) the cost of providing notice to government agencies, credit bureaus, and/or other required entities; (3) the cost of providing affected Data Subjects with credit monitoring services for a specific period not to exceed twelve (12) months or the minimum time period provided by applicable law, whichever is longer; (4) call center support for such affected Data Subjects for a specific period not to exceed thirty (30) days; (5) the cost of any other measures required under applicable law; and (6) any other losses, liabilities, damages (including punitive and exemplary damages), fines, penalties, interest and claims and all related costs and expenses for which GAP may be deemed liable in its role as Data owner or controller.
8.4 Customer shall not disclose the occurrence of any Data Breach to any third party without first obtaining GAP’s written consent to do so, except to the extent Customer is required by applicable law to make such disclosure prior to obtaining GAP’s written consent. Customer agrees that GAP has the sole right to determine: (A) whether to provide notice of the Data Breach to any Data Subjects, governmental authorities, consumer reporting agencies or other third parties; and (B) the contents of such notice, whether any type of remediation may be offered to affected Data Subjects, and the nature and extent of any such remediation.
8.5 “Breach Incident” means any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of, or access to, Personal Data.
8.6 “Data Subject” has the same meaning given to it in Chapter 1, Article 4 of the General Data Protection Regulation (“GDPR”).
8.7 “Personal Data” has the same meaning given to it in Chapter 1, Article 4 of the General Data Protection Regulation.
9. Technical and Organizational Security Measures: Customer represents and warrants that it shall (and shall ensure that all of its third party processors shall) comply with the following obligations set forth in this Section 9.
9.1 Customer will take all necessary technical and organizational security measures against the accidental, unauthorized or unlawful processing of Personal Data and against the loss, alteration or destruction of, disclosure of, access to or damage to Personal Data. Customer, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural person, shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. Customer acknowledges that its duty to take security measures under this Section 3(a)(i) is in addition to, and does not limit, Customer’s obligations to take appropriate technical and organizational security measures pursuant to applicable law.
9.2 Customer will observe and comply with all security and privacy policies, rules, and standards provided to Customer by GAP from time to time, or as may be agreed in writing between the parties pursuant to another agreement that is applicable to the particular Personal Data. In assessing the appropriate level of security, Customer and each third party processor shall take account in particular of the risks that are presented by processing, in particular from a Data Breach.
9.3 Customer will advise GAP of all changes in technology implemented from time to time which may be relevant to ensuring that an appropriate level of security is in place with respect to Personal Data. Customer will not change the level of security in respect Personal Data without the express approval of GAP. Customer will not materially decrease the overall security of the Data during the term of these Terms and Conditions and the Service Agreement.
9.4 At the request of GAP, Customer will at no additional charge cooperate fully with GAP to assist the requesting entity in ensuring, to the satisfaction of GAP that information security measures implemented by GAP meet the requirements of applicable law.
10. Data Subject Rights, Cooperation, Response Obligations:
10.1 Customer will, to the extent legally permitted, promptly notify GAP promptly if (A) itreceives any inquiry, complaint, request or claim from a Data Subject relating to Personal Data or the processing thereof, (B) it receives a request from a Data Subject to assert the Data Subject’s right of access, right to rectification, restriction of processing, erasure (“right to be forgotten”), data portability, object to the processing, or its rights not to be subject to an automated individual decision making, or (C) any other complaint, allegation or request is made by a Data Subject or by any governmental authority relating to (i) Personal Data processed pursuant to the Servvice Agreement or (ii) GAP or a GAP Affiliate’s obligations under applicable law. Customer will not respond to any such communication except to confirm that such request relates to GAP to which GAP hereby agrees, without GAP prior written consent, except to the extent required by Applicable Law or necessary to confirm the request relates to GAP. Taking into account the nature of the processing, Customer shall assist GAP by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of GAP obligations to respond to a Data Subject’s request under the GDPR. In addition, to the extent GAP does not have the ability to address a request from a Data Subject, Customer shall upon GAP request provide commercially reasonable efforts to assist GAP in responding to such Data Subject’s request, to the extent Customer is legally permitted to do so and the response to such Data Subject’s request is required under the GDPR. To the extent legally permitted, GAP shall be responsible for any costs arising from Customer’s provision of such assistance.
10.2 Customer will at no additional charge cooperate as legally required with GAP or a GAP Affiliate with respect to the authentication, recording, investigation, processing, execution and resolution of, all inquiries, allegations, complaints, requests and claims of any governmental authority relating to access, rectification, portability, restriction, erasure, objection or any other rights available to Data Subjects under applicable law with respect to Personal Data. Unless GAP or a GAP Affiliate requests otherwise, Customer shall provide details of the Personal Data held by it within fifteen business (15) days (or such earlier time if required in order to comply with applicable law) of receipt of the request for such Personal Data.
11. Acceptance: This Service Agreement will only become effective upon execution by Customer and acceptance by GAP at its offices in Sparta, Michigan. These Terms and Conditions shall be similarly applicable to compilations provided to Customer in the future unless Customer and GAP agree otherwise. The Service Agreement may be terminated by GAP at any time upon ten (10) days written notice to Customer.
12. General: The Service Agreement is personal to the Customer and may not be transferred voluntarily or involuntarily to any other party. These Terms and Conditions and the Service Agreement set forth the entire agreement and understanding of GAP and Customer, and supersede any previous agreements, provisions, or representations relating to the subject matter of the aforelisted documents. No waiver or amendment of any term, condition, or provision of these Terms and Conditions or the Service Agreement shall be valid or binding construed, interpreted, and enforced under the law of the State of Michigan.
By signing an advertising contract with Great American Media Services, you agree to our advertising terms and conditions in effect on the date of your contract, which are incorporated here in full by this reference. If any portion of your contract includes having us send any email on your behalf to our database you agree to the email distribution terms and conditions in effect on the date of this contract, which are incorporated here in full by this reference. If any portion of your contract includes a mailing list rental of our database you agree to the nondisclosure terms and conditions in effect on the date of your contract, which are incorporated here in full by this reference. You acknowledge that you have accessed and obtained a copy of those terms and conditions via our website as of the date of your contract. We may change those terms and conditions unilaterally and our updated terms will apply to contracts dated after the date we post updated term and conditions to our website. We limit acceptance to the provisions of this contract, including the terms and conditions set forth at the links provided, and we object to and reject any other additional or different terms in your purchase order or acceptance.
Great American Media Services
75 Applewood Drive, Suite A
P.O. Box 128
Sparta, Michigan 49345 U.S.A
Phone: 616-520-2137© 2022 Great American Media Services. All rights reserved.