UDX-Leads was designed to support Marketing Resellers as well as In-house Marketing Professionals. There are, however, certain terms and conditions that a Marketing Reseller must adhere to in order to become an authorized UDX-Leads Reseller. A Semcasting Account Representative will be happy to walk you through the UDX Reseller Program - email email@example.com. The following will highlight the main requirements.
UDX-Leads is designed so that a Reseller may private label the Emails and Reporting that their clients receive. Emails and reports will automatically be routed per the subscription schedule to the end client, or to the reseller. The same systems that support the generation of lead matching and reporting that support a Direct Account also support the Reseller Accounts.
One Account - One Domain A Reseller can sell one or more clients on UDX-Leads, however, each client must have their own UDX-Leads subscription. Each subscription supports one domain, although more than one tag can be deployed on that domain. A Reseller may create the account on behalf of their client; including determining the subscription level most appropriate.
Private Labeled A Reseller may elect to upload their own Logo or their Clients logo when they create each account on behalf of a client. The uploaded logo will be included in all reporting of site visits and emails. A Reseller is responsible for providing the appropriate logo and trademark information. The emails, reports and website carry Semcasting Inc. trademarks and copyrights. Those trademarks and copyright must not be altered or removed.
Notification The Reseller is accepting the terms and conditions of the license agreement on behalf of their client. This includes the acceptance of all terms in the license, including responsibility for the placement of the Site Visitor Attribution (SVA) tag and the inclusion of the required notifications that need to be part of the client website terms and conditions. The precise language can be found in the UDX-Leads terms and conditions agreement.
Billing The Reseller is accepting responsibility for monthly billing when they create an account for their client. Semcasting will invoice the Reseller directly. The Reseller is responsible for payment to Semcasting and the collection of fees from their clients. The Resellers cost is the same as that of the In-house Marketing professional. If the Reseller has a client they anticipate will generate high traffic and match rates – typically greater than 25,000 Direct Matches per month - they are encouraged to contact firstname.lastname@example.org for volume discount rates that may be available.Semcasting will charge the Reseller for a monthly subscription plus any "direct match overage" in excess of 1,000 records per month at a rate of $25.00 per thousand. A Reseller may resell the subscription, the lists, or both, at rates they determine are appropriate.
Only Direct Matching Counts A "Direct Match" is determined when a site visit can be matched directly to an individual, household or business. For clarity, a Direct Match is an IP Address or (in the case of a business) an IP Range matched to a single individual, device, home, or business. A match must have a Confidence Score greater than 5 and be labeled as a Direct Match in the reporting that is provided. If the match is a "Shared Match" it is a match of one IP Address to a location that may have more than one home or business. It is still a relevant match, however, since the match may involve more than one home or business, the client and/or reseller will not incur any charges for "shared Matches" against the 1,000 records per month included, or any overage that occurs per the terms of the subscription. The Reseller or client is receiving these "Shared Match" records – including addresses and demographic information at no charge.
Your Data, Your Permissions & Data Protection.
When you use our Services, you will be providing us with access to your website traffic, customer contacts, CRM data and other data ("Client Data"). In plain terms, your data is yours. The terms you are agreeing to do not provide us with any rights to your data except for the limited access that enables us to offer you the Services.
Our Services provide you with the ability to match your web traffic data to our mailing / prospect lists ("Matched Data"). To provide our Services, we need your permission to do things like store, transmit, access and process your data. By agreeing to the terms, you give us permission to match the data, and this permission extends to our affiliates and trusted third parties we may work with.
We take data protection and ownership very seriously. When you use our Services, we will act responsibly and make our best effort to keep your information secure and confidential in our Safe Haven data warehouse. Your data is stored in a secured, SOC 1 and SOC2/SSAE 16/ISAE 3402 compliant data center, with protections in place to guard against all manner of security risks.
You agree to use our Services and the Matched Data solely for the purposes of marketing programs; targeting your customers and website clients only. Additionally, you agree to use our Services only as permitted by applicable law, including export control laws and regulations.
(Last Updated April 6, 2017)
This (“Agreement”) is made as of the Effective Date (as defined below) by and between Semcasting, Inc., a Delaware corporation (“Semcasting”) and the entity which the individual who enters into this Agreement represents and is authorized to bind (“Client”). This Agreement sets out the terms and conditions under which Client may utilize the Services (as defined below). By checking the “I have read and agree to the terms and conditions” box at the bottom of this agreement or continuing to use or access the Services, Client acknowledges (1) that it has read and understands this Agreement, (2) that it agrees to be bound by its terms and conditions, (3) to the extent that Client is an individual using or accessing the Services on behalf of a company, such individual has the power and authority to bind that company, and (4) this Agreement constitutes a legally binding agreement. For purposes of this Agreement, the “Effective Date” shall mean the earlier of the date this Agreement is accepted or the date on which Client first uses or accesses the Services.
WHEREAS, Semcasting provides an automated digital lead generation and onboarding platform (the “Services”) that matches Client Data (as defined herein) with information and data contained in Semcasting’s proprietary database (the “Matched Data”); and
WHEREAS, Semcasting wishes to provide the Services to Client and Client desires to obtain access to the Services from Semcasting for its marketing programs.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION One - TRIAL
1.01 Services. Subject to the terms of this Agreement and for a period of thirty days from the date Client first accesses the Services, Semcasting agrees to host the Services and allow Client to access and use the Services for the sole purpose of evaluating its functionality and performance (a “Trial”) and is limited to producing 1,000 records of Matched Data. Semcasting will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the Services.
1.02 Automatic Rollover into Paid Subscription. UNLESS CLIENT CANCELS THE TRIAL BY CONTACTING SEMCASTING PRIOR TO THE END OF ITS TRIAL PERIOD, CLIENT’S SUBSCRIPTION PERIOD WILL AUTOMATICALLY COMMENCE UPON THE EXPIRATION OF THE 30-DAY TRIAL PERIOD AND CLIENT WILL BE CHARGED A PRORATED AMOUNT OF THE SUBSCRIPTION PERIOD EQUAL TO THE NUMBER OF DAYS REMAINING IN THE CALENDAR MONTH AND THE FULL AMOUNT DUE FOR THE SUBSCRIPTION PERIOD ON THE FIRST DAY OF THE FIRST MONTH THEREAFTER. IF CLIENT DOES NOT CANCEL THE TRIAL, CLIENT AUTHORIZES SEMCASTING (WITHOUT NOTICE) TO COLLECT THE THEN-APPLICABLE FEES AND ANY TAXES FOR THE SUBSCRIPTION PERIOD, USING THE CREDIT CARD OR BILLING CREDENTIALS PROVIDED TO SEMCASTING.
SECTION Two - SERVICES
2.01 Services. Subject to the terms of this Agreement and during the term of this Agreement, Semcasting agrees to host the Services and to allow Client to access and use the Services in accordance with the subscription level subscribed to by Client through the online store and shall use its commercially reasonable efforts to provide the Services, subject to maintenance downtime, outages and delay occurrences. Semcasting shall use its commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. Semcasting will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the Services.
2.02 Limitations on Rights Granted. Except as expressly required or permitted by applicable law, Client shall not, and shall not knowingly cause or permit any non-party to, use or reproduce the Services. Client shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services, or otherwise apply any procedure or process to the Services in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Services or any algorithm, process, procedure or other information contained in the Services. Client may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the Services.
SECTION Three - Matched Data
3.01 Client Data. For purposes of this Agreement, “Client Data” means all information and data relating to Client’s customers or potential customers uploaded to the Services by Client or by a third party on Client’s behalf in furtherance of this Agreement, including, but not limited to: (a) data from Client or Client’s database/CRM systems; (b) data from a customer or prospective customer of Client, and (c) data from third party contractors or agents of the Client (e.g., Client’s domain administrators or email service provider). Subject to the terms and conditions herein, all Client Data shall be Client’s property during and after the Subscription Period. Client agrees that it will abide by all local, state, national, and international laws and regulations applicable to its use of the Services, including, without limitation, all laws regarding the processing, storage and transmission of Client Data in and through the Services. Client hereby grants to Semcasting a non-exclusive, worldwide license to store, transmit, process and use Client Data for the purpose of performing its obligations and exercising its rights hereunder. This Agreement does not address, amend, modify, transfer and/or otherwise impact in any way any pre-existing right, title and/or interest in and to Client Data and Client retains all pre-existing right, title and interest in and to its Client Data.
3.02 Permitted Uses and Restrictions. Client’s use of the Services are expressly subject to the following:
(a) The Services and the Matched Data must be used exclusively for Client’s marketing programs to consumers and businesses, mailing lists, analytics, modeling and list analysis;
(b) Client may not market, sell, lease, rent, resell or provide to any reseller for the purpose of additional sales or to any other party (i) the Matched Data or a derivative of the Matched Data, (ii) its own file, as enhanced with the Matched Data, or (iii) any direct marketing list, model, analysis, code or report utilizing or derived from the Matched Data;
(c) All marketing communications use in connection with any list created by or for Client derived from the Matched Data shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient’s name and address, (ii) comply with all applicable federal and state laws, rules and regulations, and (iii) comply with all applicable privacy policies, ethical use and fair information practices as published in the Direct Marketing Association Guidelines for Ethical Business Practice ( https://thedma.org/wp-content/uploads/DMA_Guidelines_January_2014.pdf);
(d) Client may not use the Matched Data as a factor in establishing an individual’s creditworthiness or eligibility for (i) credit or insurance, or (ii) employment;
(e) Client shall not use any Matched Data to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, weapons, or involving credit repair services;
(f) Matched Data shall not be used in connection with any telemarketing activities;
(g) Client agrees to furnish Semcasting, if requested, two (2) copies of each mail piece and/or e-mail using information derived from the Matched Data;
(h) Client may not use the Matched Data, in whole or in part, in the development of (i) any application that is outside the scope of this Agreement or (ii) any data products or services to be provided to third parties including, without limitation, any list enhancement or data appending service or product;
(i) Semcasting reserves the right to review and pre-approve the Client’s intended use of the Matched Data; and
(j) Semcasting is obligated to comply with certain restrictions and requirements placed upon the use of the Matched Data and Client shall strictly comply with all restrictions and requirements now or hereafter imposed or placed upon the Matched Data by Semcasting and made known to Client in writing.
3.03 Consumer Inquiries. Client shall be responsible for accepting and responding to any communication initiated by a consumer (“Consumer Inquiries”) arising out of Client’s use of the Matched Data. Client agrees that it will provide “in house” suppression to consumers, upon request by a consumer, from future marketing initiatives by Client and agrees to honor any such request by suppressing such consumer information from Client’s marketing solicitations. No reference to Semcasting in written or oral communication to a consumer or in scripts used by Client in responding to Consumer Inquiries shall be made without Semcasting’s prior written approval.
3.04 Suppression Files. The Services and Matched Data are built using appropriate suppressions files, including, but not limited to, the Direct Marketing Association’s Mail Preference services to flag an individual consumer as having opted out of receiving marketing solicitations. Client agrees to honor each consumers’ elections not to receive marketing solicitations in any use of the Matched Data. Client acknowledges that Semcasting does not guarantee that the names or e-mails or all such consumers have been flagged or removed from the Matched Data supplied to Client hereunder and that Client is solely responsible for all emails and marketing solicitations, regardless of whether such emails are sent to recipients included in the Matched Data or otherwise.
SECTION Four - PAYMENT OF FEES
4.01 Fees for the Services. Client agrees to pay or caused to be paid to Semcasting all applicable fees for access to and use of the Services subscribed to by Client during the Subscription Period via check, credit card or deduction of such fees directly from Client’s bank account. Client shall provide Semcasting with all necessary billing information, credit card information or bank account, routing and related information and authorizes Semcasting to bill, charge or deduct automatically all such fees and charges on the first day of the Subscription Period. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law (“Late Fee”) for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Client agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties.
4.02 Automatic Renewal of Subscription Period. UNLESS CLIENT CANCELS OR SETS THE SUBSCRIPTION AUTO RENEWAL PREFERENCE TO “OFF” IN ITS ONLINE ACCOUNT PRIOR TO THE END OF ITS EXISTING SUBSCRIPTION PERIOD, CLIENT’S PAID SUBSCRIPTION WILL AUTOMATICALLY RENEW, AND CLIENT AUTHORIZES SEMCASTING (WITHOUT NOTICE) TO COLLECT THE THEN-APPLICABLE FEE AND ANY TAXES FOR THE NEXT SUBSCRIPTION PERIOD, USING THE CREDIT CARD OR BILLING CREDENTIALS THAT CLIENT PROVIDED WITH RESPECT TO THE PREVIOUS SUBSCRIPTION PERIOD. Subscription fees and features may change over time. Client’s Subscription Period will be renewed at the level of Services that Semcasting, in its sole discretion, identifies as being closest to the Services previously subscribed to by Client.
4.03 Taxes. Client shall pay, indemnify and hold Semcasting harmless from (a) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Semcasting’s income; and (b) all government permit fees, customs fees and similar fees which Semcasting may incur with respect to this Agreement. Such taxes, fees and duties paid by Client shall not be considered a part of, a deduction from, or an offset against, payments due to Semcasting hereunder.
SECTION Five - TERM AND TERMINATION
5.01 Subscription Period. This Agreement and Client’s use of access to the Services shall continue for as long as Client has paid for an active subscription to the Services (the “Subscription Period”) which may be in one month or annual increments and only as long as Client and its agents and employees use the Services in compliance with this Agreement.
5.02 Suspension of Services. Semcasting reserves the right to suspend Client’s access to or use of any portion or all of the Services if Semcasting reasonably believes that: (a) Client’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact the Services or access to the Services by third parties, (iii) could subject Semcasting, its affiliates, or any third party to liability, or (iv) could be in violation of applicable law; (b) Client is in breach of this Agreement; (c) Client is in breach of its payment obligations under Section 4; or (d) Client has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
5.03 Termination for Breach or Insolvency. Unless prohibited by law, and without prejudice to Semcasting’s other rights and remedies, Semcasting shall have the right to terminate this Agreement and the licenses granted hereunder immediately if (a) Client breaches any of the material terms of this Agreement and if such breach is capable of cure, fails to cure such breach within thirty (30) days of receipt of notice from Semcasting, or (b) Client becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or admits in writing its inability to pay its debts when due. Upon termination of this Agreement pursuant to this Section 5.03, all licenses granted to Client hereunder shall terminate automatically and Client shall immediately cease use of the Services.
5.04 Effect of Termination. Upon cancellation, suspension or termination, all licenses granted to Client hereunder shall terminate and all rights to use or access the Services shall cease. Semcasting will hold the Client Data for a period of thirty (30) days following termination. After the end of such period, Semcasting may delete the Client Data and Client’s Confidential Information. Client is solely responsible for backing up all of its Client Data and Confidential Information.
SECTION Six - Intellectual Property; Confidentiality.
6.01 Intellectual Property. Client acknowledges that the Services and all content contained therein, including, but not limited to, text, works of authorship, software, music, sound, photographs, video, graphics, and third party materials and advertisements, but excluding Client Data (collectively, “Content”) is proprietary to Semcasting and its licensors, and Semcasting and its licensors retain exclusive ownership of the same throughout the world, including all related copyrights, trademarks, service marks, patents, trade secrets or other intellectual property and proprietary rights thereto. Except for the limited rights granted to Client under this Agreement, Semcasting and its licensors retain all right, title or interest in and to the Services and the Content. The Content is licensed and not sold. Client acknowledges and agrees that any ideas, enhancements, improvements, additions or modifications to the Services, suggested by it, and any and all intellectual property rights contained therein, will become Semcasting’s property, and Client hereby assigns and agrees to assign any and all right, title and interest to any rights in such suggestions to Semcasting. Client hereby agrees to abide by United States copyright, patent and trade secret law, all other applicable laws of the United States and other nations, and any applicable international treaties.
6.02 Confidential Information.
(a) The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation, in the case of Semcasting, its proprietary database of client data and information used to create the Matched Data and other information available through the Services and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; (iv) is independently developed by the receiving party; or (v) Client Data.
(b) As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure. The existence and terms of this Agreement may not be disclosed by Client except as required by applicable law. Semcasting may disclose the existence and terms of this Agreement to its affiliates, successors and assigns, and any other party that is under an obligation of confidentiality to Semcasting.
(c) The Services, in the normal course of operations, provides Semcasting with aggregated, statistical data (such as product or feature usage and functionality metrics), which is anonymized and aggregated with other such anonymized data so that it does not and cannot contain any information identifiable or attributable to any individual or client, either alone or in combination with other data (“Aggregated Anonymous Data”). To the extent that any Aggregated Anonymous Data is collected by Semcasting, Client agrees that Semcasting may use, store, analyze, and disclose such Aggregated Anonymous Data for any lawful business purpose without a duty of accounting to Client.
6.03 Destructive Mechanisms. Client expressly agrees that it will not introduce into the Services or Client Data any virus, “Trojan horse”, work, or other mechanism intended to cause the destruction, loss, interception or alteration of Client Data by unauthorized means and/or persons. Semcasting shall use commercially reasonable efforts, consistent with industry standards, to provide security measures (such as password protections and encryption) and maintain such other safeguards as are reasonably intended to prevent the destruction, loss, interception, or alteration of Client Data by unauthorized persons. The parties expressly recognize that, although Semcasting shall take such reasonable steps, or cause such reasonable steps to be taken to prevent security breaches, it is impossible to maintain flawless security. Except with respect to Semcasting’s express obligations herein, Client is solely responsible for, and Semcasting hereby disclaims, any liability for any damage caused by unauthorized destruction, loss, interception, or alteration of the Client Data by unauthorized persons that is due to any failure or deficiency in Client’s own security measures.
SECTION Seven - Warranties; Limitation of Liability and Indemnification.
7.01 Client Warranties. Client has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Client in accordance with its terms and no provision requiring Client’s performance is in conflict with its obligations under any constitutional document, charter or any other agreement (of whatever form or subject) to which Client is a party or by which it is bound. Client is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Client’s business make such authorization necessary or required. Client enters into this Agreement and will only use the Services in the course of its own business, trade or profession and not as a consumer (nor for any personal, household or domestic purposes).
7.02 Service Warranties. THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. SEMCASTING DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO CLIENT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SEMCASTING OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SEMCASTING’S OBLIGATIONS.
7.03 Indemnification. Client agrees to indemnify, defend, and hold harmless Semcasting, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (a) any failure by Client or any employee, agent or affiliate of Client to comply with the terms of this Agreement; (b) any warranty or representation made by Client being false or misleading; (c) negligence of Client or its subcontractors, agents or employees; or (d) any representation or warranty made by Client or any employee or agent of Client to any third person other than as specifically authorized by this Agreement.
7.04 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL SEMCASTING’S TOTAL LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE ACTUAL AMOUNTS PAID BY CLIENT TO SEMCASTING FOR SERVICES UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY EXCLUDES OR LIMITS LIABILITY TO THE OTHER FOR: FRAUD OR FRAUDULENT MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE AND BREACH OF SECTION 6.01.
SECTION Eight - GENERAL PROVISIONS
8.01 Non-Solicitation. During the Subscription Period and for the twelve (12) month period following the termination of this Agreement, Client shall not, without the express prior, written consent of a duly authorized representative of Semcasting, directly or indirectly, either for itself or any other person or entity, solicit or induce or attempt to solicit or induce to leave the employ of Semcasting any employee, provided that Client shall not be prohibited from: (a) employing any such person who contacts Client on his or her own initiative without any direct solicitation by or on behalf of Client, and (b) conducting generalized solicitation for employees, not specifically targeted at Semcasting’s employees, through the use of media advertisements, professional search firms or otherwise.
8.02 Publicity. Client hereby grants Semcasting permission to use Client’s name in its marketing materials including, but not limited to use on Semcasting’s website, customer listings, in interviews and press releases.
8.03 Modifications to this Agreement. Semcasting may modify this Agreement at any time by posting a revised version at [www.semcasting.com/termsofuse] or by otherwise notifying Client in accordance with Section 8.04; provided, however, that Semcasting will provide at least 90 days’ advance notice in accordance with Section 8.04 if it intends to discontinue any feature or component of the Services. Subject to the 90-day advance notice requirement with respect to discontinuing such feature or component of the Services, the modified terms will become effective upon posting or, if notified by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, Client agrees to be bound by the modified terms. It is Client’s responsibility to check regularly for modifications to this Agreement.
8.04 Notices. Semcasting may provide notices to Client by: (a) posting a notice on www.semcasting.com; or (b) sending a message to the email address then associated with Client’s account. Notices provided by posting on the www.semcasting.com will be effective upon posting and notices provided by email will be effective when the email is sent. It is Client’s responsibility to keep its email address current. Client will be deemed to have received any email sent to the email address then associated with its account on the date the email is sent, whether or not Client actually receives the email. Client may provide notices to Semcasting by emailing email@example.com.
8.05 No Assignment. This Agreement may not be assigned by Client without the written consent of Semcasting.
8.06 Entire Agreement. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, understandings and agreements concerning such matters. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, which shall remain in effect. Use of any purchase order or other Client document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect. This Agreement may be signed in multiple counterparts and may deemed executed and delivered by electronic delivery of copies of manually executed signatures.
8.07 Governing Law. This Agreement and any disputes relating hereto shall be governed by and construed in accordance with the internal substantive and procedural laws of the Commonwealth of Massachusetts, without regard to any conflicts of laws principles. The parties consent to the exclusive personal and substantive jurisdiction of the federal and state courts sitting in the Commonwealth of Massachusetts with respect to the resolution of any disputes relating to this Agreement, and agree not to commence any suit, action or other proceeding arising under, relating to or based upon this Agreement except in such courts. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY PROCEEDING ARISING FROM OR RELATING TO THIS AGREEMENT.
8.08 Equal Opportunity. Semcasting shall comply with the following provisions for so long as the Agreement is in effect. Semcasting shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a) to the extent applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
CLIENT ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, THAT IT UNDERSTANDS THIS AGREEMENT, AND THAT BY CONTINUING TO ACCESS OR USE THE SERVICES, CLIENT AGREES TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. CLIENT FURTHER AGREES THAT, EXCEPT FOR ANY OTHER WRITTEN SEPARATE AGREEMENTS BETWEEN SEMCASTING AND CLIENT, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.