WIEDER, INC. EMAIL MARKETING SERVICES TERMS
This Email Marketing Services Contract is between Wieder, Inc., a Delaware Corporation (“Wieder”), and (the “Client”) (collectively, the “Parties”).
W I T N E S S E T H:
WHEREAS, Wieder is in the business of providing email marketing services (“Services”);
WHEREAS, Client desires to engage Wieder to perform such Services as hereinafter defined; and
WHEREAS, Wieder is willing and able to provide such services for Client in accordance with the terms recited herein.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions set forth herein, and with the intent to be legally bound thereby, Wieder and Client hereby agree as follows:
- Scope of Services. Wieder shall provide Client with the specific Services to this Agreement, which shall be fully incorporated into this Agreement.
- Client will compensate Wieder for the Services in the amount agreed to this Agreement. Payment of compensation for Services must be made in advance.
- Term of Agreement. This Agreement shall be effective as of the Effective Date and shall remain in force until terminated by either party.
- Intellectual Property.
- “Client Content” means any intellectual property, including, but not limited to, all trademarks, copyrights, patents, trade secrets, software, domain names, code processes, algorithms, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, articles, audio, blog postings, comments, documents, editorial content, files, images, listings, logos, messages, music, photos, postings, questions and answers, ratings, recommendations, reviews, sounds, site profiles, tags, text, and videos that are Transmitted by the Client in accordance with any products or the Services provided by Wieder under this Agreement.
- “Wieder IP & Technology” means the past, present and future intellectual property owned and/or developed by Wieder, including, but not limited to, all trademarks, copyrights, patents, trade secrets, software, domain names, code processes, algorithms, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, articles, audio, blog postings, comments, documents, editorial content, files, images, listings, logos, messages, music, photos, postings, questions and answers, ratings, recommendations, reviews, sounds, site profiles, tags, text, and videos.
- Client Content. Wieder & Client represent and warrant as follows:
- Client grants Wieder a limited non-exclusive non-transferable irrevocable license to use any Client Content provided to Wieder by Client solely for the purposes of providing the Services under this Agreement. This limited license will expire with the termination of this Agreement.
- Wieder does not claim any ownership rights in Client Content, other than those stated herein.
- Client affirms, represents, and warrants that (i) it is the creator and owner of or has the necessary licenses, rights, consents, releases, and permissions to use and to authorize Wieder to use all Client Content provided by Client to Wieder in furtherance of this Agreement; (ii) Client Content does not and will not slander, defame, harass, abuse, threaten, or libel any other person; (iii) the use of Client Content as permitted herein does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (iv) Client Content does not contain any viruses, adware, spyware, worms, or other malicious code; (v) Client Content will not violate or conflict with any law of the United States of America including, but not limited to, the Digital Millennium Copyright Act (“DMCA”), the Children’s Online Privacy Protection Act (“COPPA”), and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”), the law of the State of California, any law applicable to Client by residence, place of business, or formation, or any applicable international law; (vi) Client Content will not contain any nudity or material of an erotic, obscene, or pornographic nature; or (v) Client Content will not contain any political propaganda, bigotry, racism, or messages inciting hatred or promoting illegal activity.
- Wieder warrants and represents that it falls within the definition of an online service provider under Section 512 of the DMCA and as such has no duty to and will not actively monitor Client Content, but reserves the right to remove any Client Content which is in violation of the preceding Section or that Wieder, in its sole discretion, deems offensive.
- Wieder reserves the right to access any Client Content stored on Wieder servers for the purposes of this agreement or in accordance with this Agreement. Any such Client Content will be deemed “Confidential Information” defined hereinafter.
- Wieder IP & Technology. Wieder & Client represent and warrant as follows:
- Wieder grants Client a limited non-exclusive non-transferable freely revocable license to use Wieder Technology provided to Client by Wieder as per this Agreement for the term of this Agreement. Client acknowledges and agrees that with exception to the limited licenses provided in this Agreement, Client has no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way exploit any of Wieder IP & Technology in any manner. This limited license terminates automatically, if this Agreement is materially breached, and will expire with the termination of this Agreement.
- Nothing in this Agreement shall be construed to transfer from Wieder to Client the ownership of any Wieder IP & Technology. Unless otherwise noted herein or by written agreement, Client shall acquire no rights in Wieder IP & Technology.
- Client does not claim any ownership rights in Wieder IP & Technology.
- All Wieder IP & Technology shall be deemed Confidential Information as per Section V of this Agreement.
- DMCA Policy. Wieder takes intellectual property rights very seriously and demands the same from Clients. Wieder will respond to allegations of copyright violations in accordance with the DMCA. The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. When a valid DMCA notification is received, Wieder responds under this process by taking down the offending Client Content. On taking down Client Content under the DMCA, Wieder will take reasonable steps to contact the Client so that a counter-notification may be filed. On receiving a valid counter-notification, Wieder will generally restore the Client Content in question, unless Wieder receives notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
- Notice of Infringement. If a copyright owner has a good faith belief that any Client Content infringes on their copyrights, said copyright owner may send Wieder’s “Designated Copyright Agent” a written notification pursuant to Section 512 of the DMCA (“Notice of Infringement”). Wieder’s response to a proper Notice of Infringement will be to remove or disable access to the Client Content claimed to be infringing and notify the Client of the claim so that the Client may submit a Counter Notice, hereinafter defined, to Wieder.
- Counter Notice. If the Client Content was removed or access was blocked and the Client has a good faith belief that it is not infringing on any copyrighted material, the Client may send Wieder a written counter notice pursuant to Section 512 of the DMCA (“Counter Notice”).
- The Counter Notice must:
- Identify in sufficient detail the Client Content that Wieder has removed or to which Wieder has disabled access and the location of the material (e.g., the URL) before it was removed/disabled;
- The Counter Notice must:
- Provide proper identification of the Client;
- Include a statement that the Client consents to the jurisdiction of the federal district court in which your address is located, and a statement that the Client will accept service of process from the person who provided notification of the alleged infringing activity;
- Provide a statement, made under penalty of perjury, that the Client has a good faith belief that the material was removed/disabled as a mistake or misidentification of the material;
- Provide a physical or electronic signature; and
- Abide by the notice requirements of Section XXV of this Agreement
- Be addressed to the attention of Wieder’s Designated Copyright Agent.
- Failure to comply with all of the above requirements may invalidate Client’s Counter Notice under the DMCA
- If the Designated Copyright Agent receives Client’s valid Counter Notice, Wieder may restore removed Client Content or cease disabling it within ten to fourteen (10-14) business days, unless Wieder receives notice from the alleged copyright owner who filed the initial Notice of Infringement that said party has filed a court action seeking to stop the alleged infringement.
- CAN-SPAM Policy. Wieder requires that all Clients refrain from violating CAN-SPAM. Client represents and warrants that all email sent under this Agreement will conform to CAN-SPAM and adhere to the Bureau of Consumer Protection publication, “CAN SPAM Act: A Compliance Guide for Business,” which is or was available online at: http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business.
- “Confidential Information” means any technical data, trade secret, know-how, or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or “Proprietary.” If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within five (5) days of such disclosure. All Wieder IP & Technology shall be deemed Confidential Information.
- Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or becomes publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; and/or (vii) is disclosed pursuant to judicial order, pursuant to requirement of a governmental agency, or by operation of law.
- Nondisclosure. Both Parties agree that they will not disclose any Confidential Information to any third party, including but not limited to independent contractors, and will not use either party’s Confidential Information for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of two (2) years thereafter, without the prior written consent of the other party, which may be withheld in the sole discretion of said party. The Parties agree that Confidential Information shall remain the sole property of the party disclosing such Confidential Information and that such disclosing party will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by either party to the other party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
- Return of Confidential Information. Upon the disclosing party’s request or the termination of this Agreement, either party will promptly return all Confidential Information furnished hereunder and all copies thereof.
- Remedy for Breach of Confidentiality. If either party breaches any obligation with respect to confidentiality and unauthorized use of Confidential Information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as monetary damages notwithstanding anything to the contrary contained herein.
- Client may include Wieder’s name and logos as limited herein in self-promotion pieces with Wieder given review and approval rights prior to release. Client is permitted to release general announcements to the press regarding the relationship, with Wieder given review and approval rights for the release. The release shall not disclose any of the terms of this Agreement without the prior written consent of Wieder.
- Wieder may include Client’s names, logos, slogans, trademarks, service marks, and Wieder Creative Work in self-promotion pieces. Wieder is permitted to release general announcements to the press regarding the relationship with the Client.
- Relationship of Parties. Wieder is an independent contractor, and neither Wieder nor Wieder’s staff is, or shall be deemed, Client’s employees. In its capacity as an independent contractor, Wieder agrees and represents, and Client agrees that Wieder has the right to perform services for others during the term of this Agreement.
- TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WIEDER DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS NOT INCLUDED IN THIS AGREEMENT. WIEDER DOES NOT WARRANT ANY SERVICE AGAINST FAILURE OF PERFORMANCE DUE TO FAILURE OF COMPUTER HARDWARE OR COMMUNICATIONS SYSTEM. WIEDER IS NOT RESPONSIBLE FOR ANY DATA LOSS OR SOFTWARE MALFUNCTION, OR ANY RESULTANT COSTS OR DAMAGES. THE SERVICES ARE PROVIDED AND DESCRIBED AN “AS IS” AND “AS AVAILABLE” BASIS. CLIENT EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CLIENT SOLE RISK. WIEDER DOES NOT MAKE ANY WARRANTY THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, NOR DOES WIEDER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICES. CLIENT WARRANTS AND REPRESENTS THAT ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM WIEDER OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. DUE TO THE NATURE OF EMAIL MARKETING, SOFTWARE & SERVER ISSUES MIGHT ARISE, WIEDER IP & TECHNOLOGY MAY NOT BE AVAILABLE FOR CLIENTS. AT SUCH TIME CLIENTS ARE REQUIRED TO SUBMIT ALL JOBS THROUGH EMAIL BY SIMPLY SENDING AN EMAIL TO INFO@WIEDERINC.COM WITH SUBMISSION’S DETAILS. WHEN SENDING BULK UNSOLICITED EMAILS IT IS UP TO THE INDIVIDUAL IP TO ACCEPT THE INCOMING EMAIL FOR THIS REASON NOT ALL EMAILS WILL GO THROUGH. NOR DOES WIEDER GUARANTEE THEY WILL. WIEDER RESERVES THE RIGHT TO ALTER OR CHANGE THE SOFTWARE AT ANYTIME IN ORDER TO PERFORM EMAIL SENDING SERVICE. Without limiting any of the foregoing, Wieder is not responsible for any of Client Content residing on Wieder IP & Technology. Client is responsible for backing-up Client Content that may reside on our network hardware, whether or not such Client Content is produced through the use of the Services. It is Client’s responsibility to take the necessary steps to ensure Client’s primary means of business is maintained.
- International Use. Wieder does not warrant that Wieder IP & Technology or any Service is available for use in locations outside the United States of America.
- Force Majeure. Wieder shall not be liable for and will be excused from any failure to deliver or perform or delay in delivery or performance, due to causes beyond its reasonable control or due to failure of Client to provide sufficient information, resources, cooperation, or personnel to support the Services. The period of performance shall be extended to such extent as may be appropriate after the cause of the delay or non-performance has been removed. Wieder reserves the right to modify, alter, or otherwise update the terms of this Agreement at any time due to causes beyond its reasonable control (such as changes in legislation) with such changes taking effect immediately as result provided Wieder provides Client immediate notice in accordance with Section XXV of this Agreement.
- The Client will indemnify, hold harmless, and defend Wieder against any reasonable claims, suits, losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising from, breach of this agreement, Client Content, and/or Client’s malicious, reckless, or negligent use of Wieder IP & Technology.
- Alternative Dispute Resolution.
- The parties agree to first try to resolve any controversy, claim, or dispute arising out of or relating to this Agreement, with the help of a mutually agreed upon mediator in Los Angeles, California. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties.
- If it proves impossible to arrive at a mutually satisfactory solution through mediation, Contractor agrees to settle any dispute by binding arbitration in San Antonio, Bexar County, Texas. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association (“AAA”), and judgment on the award rendered by the arbitrator(s) may be entered in the state courts in and for Los Angeles, California or the Western Division of the Central District of California. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend Agreement. The arbitrator shall be required to follow applicable law.
- IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN CONTRACTOR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- Client In addition to its right of termination, client’s sole and exclusive remedies for Wieder’s default hereunder shall be to obtain the repair, replacement or correction of the defective Services, software, or equipment to the extent of this Agreement. If such remedy is not economically or technically feasible or effective, then client may obtain an equitable partial or full credit or refund of amounts paid with respect to the defective Services, subject to the limitations set forth in Section XIV.
- Limitation of Liability. In no event will Wieder be liable to the Client for any third party claim for any indirect, special, or consequential damages including but not limited to lost profits, in connection with or arising out of this Agreement, whether or not such party has been advised of the possibility of such damages. In no event will Wieder be liable to the Client for any losses, costs, or damages that exceed the value of the fees paid to Wieder to the date of such losses, costs, or damages under this Agreement. CALIFORNIA RESIDENTS AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- Limitation of Grants. Grants to any rights pursuant to this Agreement are conditioned on receipt of payment in full. All rights not expressly granted on the face of this Agreement remain the exclusive property of Wieder. Usage beyond that granted shall require additional fees.
- The Parties agree that it is their intention and covenant that this Agreement, performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and under and pursuant to the laws of the State of California, without giving effect to any principles of conflicts of law.
- The parties agree that it is their intention and covenant that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state courts in and for Los Angeles, California or the Western Division of the Central District of California, and each Party hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submit to extraterritorial service of process.
- Attorney Fees. In the event either party institute legal proceedings in connection with or for the enforcement of this Agreement, the prevailing party will be entitled to recover its cost of suit, including reasonable attorneys’ fees, both at trial and appellate level.
- Survivorship of Benefits. This Agreement shall be binding on and inure to the benefit of the respective parties and their executors, administrators, heirs, personal representatives, successors, and assigns.
- Client will not assign or transfer, whether by operation of law or otherwise, any rights or delegate any duties under the Agreement to any third parties unless Wieder gives prior written consent, but such rights and duties may be assigned by Wieder without restriction. Any such attempted assignment by Client, will be null and void absent Wieder’s explicit consent.
- Waiver of Modification of Agreement.
- Wieder reserves the right to modify, alter, or otherwise update the terms of this Agreement at any time provided Wieder provides Client thirty (30) days’ notice in accordance with Section XXV of this Agreement.
- A waiver or modification of this Agreement or of any covenant, condition or limitation in this Agreement shall not be valid unless in writing and executed by the party to be charged, and evidence of any waiver or modification shall not be offered into or received in evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting this Agreement, or the right or obligations of any party under this Agreement, unless the waiver or modification is in writing, executed by the party to be charged.
- The Parties further agree that the provisions of this Section may not be waived except as set forth in this Agreement.
- The failure of Wieder to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
- Client Termination. Client may terminate this agreement at any time after the effective date by providing Wieder a minimum of thirty days’ notice of said termination prior to the next billing date in accordance with Section XXV of this Agreement with termination taking effect notice by Wieder. Failure to give proper notice may result in additional fee billing, which Client hereby agrees to pay. Notices of termination in a form other than those specified in Section XXV will be invalid. In the event that the Client decides to terminate this Agreement at any time after the Effective Date, Wieder shall be entitled to all outstanding fees and/or charges due to Wieder at the time notice of termination is received in addition to reimbursement from the Client for all expenses resulting from the work performed in accordance with this Agreement up until the date of termination.
- Wieder Termination. Wieder retains the right, in its sole discretion, to terminate this Agreement at any time for any reason with or without notice. Should Wieder terminate this Agreement, Client shall be entitled to a prorated reimbursement of any prepaid fees minus Wieder’s expenses resulting from work performed in accordance with this Agreement up until the date of termination.
- Termination Resulting from Client Breach. Should Client breach this Agreement, Wieder retains the right, in its sole discretion, to terminate this Agreement. Wieder shall be entitled to retain any fees prepaid by Client in the event of such a breach and Client shall not be entitled to any refund of such funds.
- If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
- To Wieder. All notices, requests, demands, and other communications called for hereunder to Wieder shall be in writing and shall be deemed given (a) on the date of delivery if delivered personally, (b) upon confirmation of delivery by a well-established commercial overnight service or certified mail, return receipt requested, prepaid, and addressed to Wieder, or (c) upon confirmation of any email or fax to Wieder by receipt from Wieder via return email or facsimile device at the following addresses or at such other addresses as Wieder may later designate by notice:
Attn: Jesper Wieder
1201 N Orange St Suite 7514
Wilmington DE 19801-1186