Customers may send payment via ACH to:
ABA # 021000021
Acct # 697839055
Bank: JPMorgan Chase
390 Madison Avenue, New York, NY 10017
Company Name: PureB2B, LLC
222 Rosewood Drive, 8th Floor, Danvers, MA 01923
Contact: Rachel Gordon
Contact Email: email@example.com
The following terms and conditions together with the order form to which this document applies by reference from such order form (the “Order”) set forth the agreement between Pure B2B, LLC (the “Provider”) and the customer identified in the Order (“Customer”), and the applicable Order and this document are collectively referred to herein as the “Agreement”. If Customer and Provider are parties to a separate master agreement covering the services under the Order, the terms of such agreement control over those set forth here.
1.1. Customer engages the Provider to perform the lead generation, demand generation or other related services (the “Services”), as indicated in the Order, and Provider agrees to perform such Services.
1.2. If a written statement of work is applicable with regard to particular Services, as may be referenced in the Order, such statement of work (the “SOW”) is also subject to the terms and conditions of this Agreement and further describes the Services and terms and conditions applicable thereto.
1.3. Depending on the Services ordered, further additional specific terms applicable will be as set forth in the relevant applicable annex to this Agreement (each an “Annex”), and all terms in any Annex attached hereto are deemed incorporated herein by this reference.
1.4. With respect to any Services, Customer expressly acknowledges that Provider is agreeing to provide the Services as indicated in the Order and this Agreement, and, if applicable, the relevant SOW and/or Annex, all as specifically described herein and therein, including with regard to the precise scope of work/services as so indicated. Any changes in scope will be subject to the change order process described in this Agreement. Provider commits to providing such Services, but does not guarantee any specific results to be derived from such Services.
1.5. Customer acknowledges that successful completion of agreed upon work and meeting agreed upon deadlines are contingent upon Customer’s timely provision of necessary information and other supporting resources requested or required by Provider.
2. Leads and Deliverables.
Customer acknowledges that Provider has in its possession prior to performance of the Services hereunder certain databases and other lists of contact information for various persons and companies that it has acquired or developed (collectively, “Provider Contact Information”). In the course of performing certain of the Services, Provider will leverage Provider Contact Information to provide Customer the specific contact information of certain persons, derived from the Provider Contact Information, and the fact that Provider has determined, through the Services, that such person with such contact information, has certain characteristics (such as interest in Customer products and services) (“Leads”). Provider retains all right, title, and interest to the Provider Contact Information generally, and the contact information of the Leads and all proprietary information and intellectual property contained therein.
In the course of providing the Services, Provider may also deliver certain other materials to Customer, which may include, without limitation, reports, documents, data, analysis, databases, or other materials (collectively with Leads, the “Deliverables”). Subject to Customer’s timely payment of all undisputed fees and reimbursable expenses, if any, owed to Provider in connection with the Services, and Provider’s ongoing compliance with all other terms and conditions of this Agreement, Provider hereby grants to Customer the non-exclusive, non-transferable right to use the Leads and Deliverables in connection with its business and to use the Provider Contact Information to the extent necessary to interact with, operate, or utilize the Leads. Customer may not transfer Deliverables or related information to any third party without the prior written approval of Provider, except in the following limited circumstances: (a) where Customer has retained a third party to provide marketing services to Customer, Customer may provide Leads delivered by Provider hereunder to such third party agent, for use only consistent with the purposes for which the Lead was obtained by Provider, and provided Customer is not selling such Lead to the third party nor permitting its use for any other purpose; or (b) where Customer has itself been retained by a third party company (an “End Customer”) as a marketing agency, and Leads provided hereunder have been obtained for the benefit of such End Customer, Customer may provide the Leads to such End Customer. Provider acknowledges that the fact that a Lead is a “Lead” with respect to Customer, and the relevant information determined about that Lead in connection with Customer are Customer’s Confidential Information, as defined in Section 9 below, and will be subject to the terms of such Section 9.
Customer also acknowledges that in providing Services and/or creating Deliverables, Provider may utilize or provide to Customer certain proprietary material owned by Provider, including, but not limited to, existing data and gathered information, software, document forms, templates, techniques, tools, processes, inventions, technical data, research, trade secrets, ideas and concepts (the “Provider Proprietary Materials”). Provider shall retain all right, title, and interest to Provider Proprietary Materials, and all copies thereof, including all intellectual property rights (including, without limitation, patents, copyrights, trademarks, trade secrets) and other proprietary rights contained therein. Provider hereby grants to Customer a non-exclusive, non-transferable, license to use any Provider Proprietary Materials to the extent that such intellectual property is necessary to interact with, operate, or utilize the Deliverables.
3. Other Responsibilities of Customer.
3.1. Customer will apply reasonable administrative, technical, and physical measures to protect Deliverables from loss, theft or unauthorized access or use.
3.2. In its use of the Deliverables, Customer agrees at all times to comply with all applicable laws and regulations, including, but not limited to, any applicable privacy and data protection law or regulation, including but not limited to the EU General Data Protection Regulation (GDPR) and any implementing regulation thereof of any jurisdiction, and any applicable data privacy law of the United States or any U.S. state, Canada, or any other relevant jurisdiction, including any such laws applicable by reason of the location of a data subject to whom the Deliverable relates (collectively, “Data Privacy Laws”). Without limiting the foregoing, Customer acknowledges that, in transferring Leads to third parties consistent with the permissions granted in Section 2 of this Agreement, Customer is fully responsible to ensure compliance with Data Privacy Laws, and that Provider is not responsible for any breach of Data Privacy Laws resulting from such a transfer.
3.3. With respect to, and in connection with, certain Services, Customer may provide certain information and materials to Provider to use as contemplated by this Agreement and the applicable SOW. Customer’s commitments and obligations with regard to the right to provide such items to Provider for such purposes are as set forth in the applicable Annex.
4. Fees and Payment. Customer shall pay to Provider all fees as indicated in the Order, and, if provided for in the Order, Customer will reimburse any expenses incurred by Provider that were approved by Customer, provided that Provider furnishes Customer with reasonable documentation supporting such authorized expenses. Provider will invoice Customer for Services provided and expenses incurred, and payment on any invoice shall be due and payable within thirty (30) days from Customer’s receipt of invoice (or on such payment terms as may be referenced on the Order, if different), by credit card or via wire transfer. Any amounts remaining unpaid for more than thirty (30) days shall be subject to interest at a per annum rate of eighteen (18%) percent. Customer shall also be responsible for all costs and expenses incurred by Provider that are associated with the collection of any unpaid balance due Provider.
5. Term and Termination. This Agreement remains in effect as long as Provider is performing Services. Either Party may terminate this Agreement and the provision of Services at any time with thirty (30) days’ written notice to the other Party. Customer may also cancel provision of any particular program prior to the program start date with at least two (2) days written notice. Sections 2, 3, 5 and 7 through 13 of this Agreement shall survive termination. In the event either party is in material breach of this Agreement, the other party may terminate this Agreement and the provision of all Services hereunder (including under any SOWs) effective following thirty (30) days’ notice unless the breach (if capable of cure) is cured within such notice period.
6. Representations and Warranties. Provider represents and warrants that all Services shall be performed in a workmanlike manner in accordance with the description of such Services as set forth in the Order and SOW (if applicable). Provided that Customer provides written notice to Provider within fourteen (14) days after it becomes aware of a defect in Provider’s performance of the Services or in the Deliverables, or of any non-conformance with this warranty, Provider will attempt to correct any non-conformance within a reasonable time. All warranties not expressly stated herein are disclaimed, including, without limitation, the implied warranties of non-infringement, merchantability and fitness for a particular purpose.
7. Indemnification. Customer shall indemnify, defend and hold harmless Provider, its affiliates, successor organizations, directors, officers, shareholders, partners and employees from and against any claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and court costs) (collectively, the “Claims”) arising out of (i) Customer’s use of Deliverables other than as permitted under this Agreement or (ii) Customer’s breach of Section 3 of this Agreement. Provider shall: (a) promptly notify Customer of any Claim; (b) allow Customer to have control of the defense of the claim and settlement thereof (provided that any settlement that obligates Provider in any manner other than for the payment of money is subject to Provider’s consent); and (c) cooperate reasonably with Customer to facilitate such defense. Provider may also participate in its own defense at its own expense.
8. Limitation of Liability. Except with regard to breach of confidentiality obligations, or in relation to indemnification obligations under Section 7 hereof, and without limiting Customer’s obligation to make payment of fees due hereunder: (a) in no event shall either Party, or such Party’s employees, contractors, representatives or agents, be liable for any indirect, special consequential, incidental or punitive damages, however caused and under any theory of liability, including, without limitation, claims based in contract, tort (including negligence claims) or product liability, regardless of whether such party was advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any such limited remedy, arising from this Agreement, and (b) each Party’s maximum aggregate liability under or related to this Agreement shall be limited to the fees actually paid by Customer to Provider under this Agreement in the twelve (12) month period preceding the events giving rise to the relevant claim.
9. Confidential Information.
(a) Scope. In the course of performing each Party’s respective obligations under this Agreement, each party may be given access to certain materials and information (in tangible form, or which is demonstrated, displayed or disclosed orally) either identified by the disclosing party as confidential or proprietary in nature or which under the circumstances surrounding the disclosure ought to be reasonably understood by the receiving party as confidential (“Confidential Information“).
(b) Use and Protection. Confidential Information may only be used by the receiving party in connection with the Services and permitted use of Deliverables and may not be copied, reproduced or otherwise distributed or disclosed, revealed, divulged or otherwise communicated to any third party (other than its affiliated companies under common control on a need-to-know basis) without the prior written consent of the disclosing party. The receiving party shall protect the Confidential Information of the disclosing party in the same manner that it protects its own proprietary and confidential information of like kind, but in no event will it exercise less than reasonable care. The parties shall notify the other party promptly in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information that may come to the receiving party’s attention.
(c) Exceptions. Nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) that (i) is or becomes publicly available through no fault of the receiving party, (ii) is independently developed by or for the receiving party or is already in the possession of that party, or (iii) acquired by the receiving party from a third party which is not, to the receiving party’s knowledge, under an obligation of confidence with respect to such information.
(d) Permitted Disclosures Notwithstanding the foregoing, a party may disclose the other party’s Confidential Information to such party’s directors, officers, employees, attorneys, auditors, insurers of it and its affiliated companies under common control who have a need to have access to such information and who are bound (by written agreement or professional code of conduct) by obligations to maintain the confidentiality of Confidential Information on terms no less protective than that set out in this Section 9; provided that in each case the disclosing party shall be responsible for all actions and omissions of such persons as if the action or omission were that of the disclosing party. In addition, a party may disclose Confidential Information if, in the written opinion of legal counsel, such disclosure is required by an applicable law, rule, regulation or order of a duly empowered government agency or a court of competent jurisdiction; provided that such disclosure may only be made after notice and a reasonable opportunity to intervene is given to the disclosing party, unless prohibited by law or court order.
(e) Return or Erasure of Confidential Information. Upon termination of this Agreement, or sooner if so requested, each party shall (a) return or, at the discretion of the disclosing party, destroy all Confidential Information and tangible copies thereof (as well as all summaries, memoranda, analyses, indices, correspondence, outlines or other mentions of such Confidential Information), and (b) erase, using best practices for erasure of electronic data erasure protection, every electronic copy format and media whatsoever. Neither party shall have an obligation to return or destroy Confidential Information stored in electronic backup systems for which retrieval or destruction would not be commercially practical, provided that such systems are not used to access the Disclosing Party’s Confidential Information and the terms of this Agreement will continue to apply to such Confidential Information stored in electronic backup systems. The obligations of this Section 9 will survive any termination or expiration of this Agreement and continue for a period of three years thereafter.
(f) Remedies. Each party acknowledges that disclosure or use of Confidential Information in violation of this Section 9 could cause irreparable harm to the disclosing party for which monetary damages may be difficult to ascertain or an inadequate remedy. Each party therefore agrees that the disclosing party will have the right, in addition to its other rights and remedies, to seek immediate injunctive relief for any violation of these confidentiality provisions without posting bond, or by posting bond at the lowest amount required by law.
10. Independent Contractor Relationship. The relationship of Provider and Customer is that of independent contractors, and nothing in this Agreement shall be construed as creating any agency, employment, partnership, fiduciary, joint venture or any other relationship between Customer and the Provider or between any of such party’s employees and those of the other party. Neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third party beneficiaries to this Agreement.
11. Notices. Any notices that any Party may make to the other pursuant to the terms of this Agreement shall be in writing and shall be sent to the other Party by certified or registered mail or by overnight delivery to the address listed on the relevant Order Form or to such other address as such Party may designate by notice to the other from time to time. All notices are effective when received by the Party to be noticed.
12. Force Majeure. This Agreement and the Parties’ performance hereunder are subject to all contingencies beyond the Parties’ reasonable control, including, without limitation, force majeure; strike; lockouts; labor disputes; floods; civil commotion; riot; war; acts of terrorism; acts of God; rules, laws, orders, restrictions, embargoes, quotas or actions of any government, foreign or domestic or any agency or subdivision thereof; casualties; fires, or accidents. In any such event, the Party not subject to force majeure (or either party, in the event that both are affected) shall have the right, with written notice to the other Party, in its sole discretion and without any liability to the other Party, to cancel or suspend all or a portion of the provision of Services, and require performance by the other Party after the cause(s) for such nonperformance or delay have ended.
13. Miscellaneous Terms. Rights and obligations hereunder shall not be assigned or otherwise transferred by a party without the prior written consent of the other, except (a) to one of its parents, subsidiaries, or affiliates, (b) in connection with a merger, consolidation acquisition or corporate re-organization, or (c) to a third party acquiring all or substantially all of the party’s assets. This Agreement and any SOW shall bind and inure to the benefit of the successors and permitted assigns of the parties. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. This Agreement together constitutes the entire agreement of the Parties pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, and understandings of the parties, written or oral (unless the parties have entered into a master agreement covering the subject matter, as indicated above). This Agreement may be amended or modified only in a writing signed by both Parties. The Order may be executed in counterparts (including by facsimile), which, taken together, shall constitute one and the same original document.
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