Defiance Analytics LLC
Terms of Service

The below terms of service (these “Terms”) apply to marketing, consulting, content creation, and other services provided by Defiance Analytics LLC, a Delaware limited liability company (“Defiance”) to any client (“Client”) pursuant to any proposal, order, statement of work, or other description of services or separate written agreement between the Parties that references these Terms (each, a “Service Statement” and such services, the “Services”). References below to “this Agreement” refer to all Service Statements that have been accepted by the Parties and these Terms. In addition, Defiance and Client are each referred to below individually as a “Party” and collectively as the “Parties”.

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In the event of any conflict between a Service Statement and these Terms, the Service Statement will control. Any modification to a Service Statement requires mutual agreement in writing by Client and Defiance to be effective. However, Defiance may modify any of these Terms at any time, in its sole discretion. All changes to these Terms that are not Material Modifications (as defined below) will be effective on the date on which such modified Terms are published online. Defiance will notify Client of any changes to these Terms that materially modify Client’s rights or obligations (“Material Modifications”) by Notice in accordance with Section 10.3 below. Any Material Modifications will be effective unless Client objects in writing within 10 business days of receipt of such notice. If Client timely objects to a Material Modification in writing, then Defiance may, in its discretion, either (a) decline to apply the Material Modification to the Terms as applied to Client or (b) terminate the applicable Services or this Agreement with Client upon at least 30 days’ prior written notice.

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1. Defiance Services and Responsibilities.

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1.1  Defiance Services. Defiance shall use commercially reasonable efforts to provide the Services to Client. Defiance may modify, change, remove or update the Services and its other products and services, design, layout, or user interface or any other aspect of the Services from time to time without prior notice to Client; provided that no such changes will materially degrade or materially reduce the scope of the Services without Client’s prior written consent.

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1.2  Defiance Personnel. Defiance shall be responsible for the payment of all compensation owed to the employees and contractors engaged by Defiance to provide the Services (“Defiance Personnel”), including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.

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1.3  Compliance with Laws. Each Party shall comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits materially necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

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2. Client Obligations and Responsibilities.

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2.1  Client shall:

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(a) Provide copies of or access to Client Materials (as defined below) as Defiance may require in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects;

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(b) Respond promptly to any Defiance request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Defiance to perform the Services in accordance with the requirements of this Agreement. Successful completion of the Services and meeting applicable deadlines are contingent upon Client’s timely provision of information or materials requested by Defiance. Defiance shall have no liability for any inability to provide Services to the extent caused by Client’s failure to provide such necessary information or materials, or failure to obtain and maintain any consents reasonably necessary from third parties for Defiance to perform its obligations hereunder; 

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(c) Not be relieved of any obligation to pay fees to Defiance for Services that were delayed or could not be performed due to Client’s failure to discharge its obligations under this Agreement. Defiance shall have no liability for delay or failure to provide the Services to the extent caused by Client’s failure to discharge its obligations under this Agreement, including Client’s failure to provide necessary information or materials or failure to obtain and maintain consents reasonably necessary from third parties for Client to perform Client’s obligations under this Agreement; and

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(d) Use the Services only in the United States, and only on a Client owned or controlled website, mobile application, or other digital property, or within e-mail communications or corresponding attachments (collectively, “Client Digital Property”) directed to individuals residing in the United States. 

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2.2  Acceptance of Work.

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(a) For the purposes of this Agreement, any Deliverable (as defined below) provided to Client under this Agreement (either partially or in full) will be considered accepted (an “Acceptance”) by Client upon Client’s written confirmation of Acceptance or if Client does not specify a valid reason in writing to Defiance for not accepting the Deliverable within three business days of Client’s receipt thereof. Further, if after Acceptance of any Deliverable in accordance with this Section 2.2, Client requests revisions to such Deliverable, Defiance and Client will agree upon the appropriate compensation for such revisions in a revised Service Statement or as otherwise mutually agreed.

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(b) Client expressly understands, acknowledges and agrees that neither Defiance nor any third party service provider engaged by Defiance in connection with providing the Services (each, a “Third Party Service Provider”) shall be responsible for complying with any specifications, rules, or policies of Client (collectively, “Client Policies”)—including but not limited to any privacy policy, policy on handling consumer data, data security policy, and social media policy—it being the express intent of the Parties that Client shall be responsible for confirming that all Services and any Deliverable provided by Defiance or any Third Party Service Provider to Client comply with such Client Policies. In the event that Client determines that any Deliverable does not comply with any Client Policies, Client shall advise Defiance of same, in writing and in sufficient detail, so that Defiance may modify such Deliverable to comply with such Client Policies, in each instance provided that such modifications shall be reasonable in scope and shall not require a material modification of such Deliverable, as determined by Defiance is its sole discretion. In such event, Defiance shall advise Client of any additional cost that may be required in connection with such requested modification. Client expressly understands, acknowledges, and agrees that Defiance does not have any obligation to modify the Services to comply with Client Policies.

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2.3  Use Restrictions. Client shall not access or use, or attempt to access or use, the Services to take any action that could harm Defiance or any third party, interfere with the operation of the Services, or use the Services in a manner that violates applicable laws and regulations. Without limiting the foregoing, without Defiance’s prior written consent, Client shall not, and shall not permit its employees or any third party to: 

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(a) except as expressly set forth in Section 3.2(c)(i), use the Services (or any part of the Services) for any purposes, including to engage in any unfair, deceptive or unlawful practices (including sending spam or otherwise duplicative messages in violation of applicable laws and regulations or sending obscene, threatening, libelous or otherwise unlawful or tortious material or other material which violates any third party’s privacy rights);

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(b) access or attempt to access parts of the Services or other computer systems or networks connected to or used with the Services to which Client is not authorized, or remove, circumvent, damage, disable or otherwise attempt to circumvent or interfere with any restrictions imposed on Client’s use of or access to the Services; 

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(c) disclose, distribute, or otherwise make available the Services (or any part of the Services) to any third party; 

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(d) lease, sublicense, rent, sell or assign any of the Services (or any part of the Services) or the right to use or access any of the Services (or any part of the Services) or the content or materials contained in the Services to any third party; 

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(e) alter, modify, translate, create derivative works of, manipulate, decompile, disassemble or reverse engineer the Services (or any part of the Services), or attempt to obtain the underlying source code or algorithms from which the Services are created, except to the extent expressly permitted by applicable laws and regulations; 

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(f) use the Services (or any part of the Services) as the basis for developing a competitive solution (or contract with a third party to do so) or access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive service; 

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(g) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or related products or services; 

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(h) introduce any virus, interfering program or other malicious code into Defiance’s system or network or disrupt the integrity, performance or security of the Services; or 

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(i) use any program or automated script to screen-scrape or “crawl” through any of the Services, or take any action that imposes an unreasonable or disproportionately large load on Defiance’s network or infrastructure.  

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2.4  Authorized Users. Client may permit its employees to use the Services subject to the terms of this Agreement; provided that Client shall be responsible for each employee’s compliance with this Agreement. Client acknowledges and agrees that Client is solely responsible for (a) maintaining the confidentiality of its access credentials to access the Services and (b) all activities that occur under its access credentials. If Client believes its account credentials or the Services have been compromised, including any unauthorized access to or use of the Services or any other known or suspected breach of security, Client shall immediately notify Defiance, but in no event more than twenty-four (24) hours following such discovery. Client shall fully cooperate with Defiance, at Client’s expenses, to remedy, repair and prevent any further unauthorized access or use.

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2.5  Suspension. Defiance shall be entitled, without liability to Client, to immediately suspend or limit Client’s access to the Services at any time in the event that Defiance determines, in its reasonable discretion, that (a) the Services are being used by Client in violation of any applicable laws or regulations or this Agreement; (b) the Services are being used by Client in an unauthorized, inappropriate, or fraudulent manner; (c) the use of the Services by Client adversely affects Defiance’s equipment or service to others; (d) Defiance is prohibited by an order of a court or other governmental agency from providing the Services; (e) there is a denial of service attack or any other event which Defiance determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (f) there is a security incident or other disaster that impacts the Services or the security of the Services, Client’s account, Client Materials or Deliverables. In the event of a temporary suspension of Client’s access to the Services, applicable fees will continue to accrue.

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3. Intellectual Property Rights; Ownership.

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3.1  License to Certain Client Intellectual Property.

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(a)  For purposes of this Agreement, (i) “Client Materials” means all information, documents, samples, products, logos, data, text, reports, works of any nature (including images, audio, video, graphics, or designs), or other materials, in any form or medium whatsoever, provided by Client to Defiance or any Third Party Service Provider in connection with the Services, including any information collected through a Client Digital Property under this Agreement and (ii) “Intellectual Property Rights” means all trade secrets, trademarks, service marks, domain names, copyrights, patents, database rights, and other intellectual property or proprietary rights.
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(b) Subject to and in accordance with the terms and conditions of this Agreement, Client grants Defiance and its affiliates and Third Party Service Providers a limited, worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), non-transferable (except in accordance with Section 10.8), irrevocable license under all applicable Intellectual Property Rights to (i) during the term of this Agreement, use Client Materials to provide the Services to Client (including to create the Deliverables and to send e-mail communications as part of the Services) and to fulfill its obligations under this Agreement and (ii) during the term of this Agreement, aggregate and deidentify Client Materials so that there is no personal information and Client cannot be identified and, during and after the term of this Agreement, use such aggregated and deidentified Client Materials for the purpose of developing, providing, and improving products and services of Defiance, its Third Party Service Providers or their respective affiliates.

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(c)  Except for the license granted above, Client expressly reserves all right, title, and interest in and to all Client Materials. Any goodwill arising from the use hereunder by Defiance or any Third Party Service Provider of any trademarks, service marks, or other indicia of origin owned or licensed by Client shall inure to the benefit of Client.

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3.2  Ownership of and License to Deliverables.

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(a)  Provided that Client shall have paid to Defiance any and all amounts due under this Agreement, and subject to Defiance’s rights in and to the Defiance IP, as set forth in Section 3.2(b), and except for the Third-Party Materials, Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, deliverables and other materials that are delivered to Client hereunder by or on behalf of Defiance and developed or created in the course of performing the Services for Client under this Agreement (including information that relates to Client’s business that is generated through the Services), including all Intellectual Property Rights therein (collectively, the “Deliverables”). Defiance acknowledges that Client shall own the copyrights in such Deliverables as a “work made for hire” for Client. To the extent any Deliverables nonetheless do not constitute a “work made for hire,” Defiance agrees to, and by way of present assignment hereby does, assign to Client all right, title, and interest in and to the Deliverables. At Client’s expense, Defiance shall execute such documents and take such other steps as may be necessary and reasonably requested by Client to assign, perfect, register, or enforce the rights assigned to Client in this paragraph.

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(b) Subject to and in accordance with the terms and conditions of this Agreement, Client grants Defiance and its affiliates and Third Party Service Providers a limited, worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), non-transferable (except in accordance with Section 10.8), and irrevocable license under all applicable Intellectual Property Rights to (i) during the term of this Agreement, use the Deliverables to provide the Services to Client (including to send e-mail communications as part of the Services) and to fulfill its obligations under this Agreement and (ii) during the term of this Agreement, aggregate and deidentify Deliverables so that there is no personal information and Client cannot be identified and, during and after the term of this Agreement, use such aggregated and deidentified Deliverables for the purpose of developing, providing, and improving products and services of Defiance, its Third Party Service Providers or their respective affiliates.

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(c) Notwithstanding anything to the contrary, Client acknowledges and agrees that Defiance has licensed, acquired, or developed prior to the commencement or independently of this Agreement, and is continually developing and refining, intellectual property and proprietary information, which may include, without limitation, content, images, graphics, materials, analytics, ideas, concepts, frameworks, data, know-how, methodologies, analytical approaches, databases, business insights, products, services (including the Services), software, applications, tools, algorithms and descriptions thereof, which may be embodied in many forms of media, including any modifications, derivative works, and enhancements thereto (whether made during the course of providing the Services or otherwise) (collectively, the “Defiance IP”), which Defiance IP Defiance will be using in the course of providing the Services. Defiance and its affiliates and licensors (as applicable) are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Defiance IP. Notwithstanding anything to the contrary in this Agreement, as between the Parties, all Defiance IP shall remain the sole and exclusive property of Defiance.  Subject to Client’s obligation to pay for the Services provided hereunder, Defiance hereby grants Client (i) a limited, worldwide, non-exclusive, royalty-free, non-sublicensable, non-transferable (except in accordance with Section 10.8), and revocable license, solely during the term of this Agreement, to access and use the Services for internal business purposes, subject to and strictly in accordance with this Agreement, and (ii) a perpetual, limited, worldwide, royalty-free, non-exclusive, non-transferable (except in accordance with Section 10.8), non-sublicensable, and revocable license to use, reproduce, distribute, transmit, and modify (including to create derivative works of) any Defiance IP solely to the extent incorporated in the Deliverables, in each case solely to the extent reasonably required in connection with Client’s use of the Deliverables. All other rights in and to the Defiance IP are expressly reserved by Defiance. Without limiting the foregoing, Defiance retains the right to use any general market research that it develops or collects in the course of this Agreement.

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(d)  In the course of providing the Services, Defiance may use certain third-party materials that are not proprietary to Defiance (collectively, the “Third-Party Materials”). Defiance hereby grants Client a perpetual, limited, worldwide, non-exclusive, royalty-free, non-transferable (except in accordance with Section 10.8), non-sublicensable license, revocable to use the Third-Party Materials to the extent incorporated in the Deliverables, in each case solely to the extent reasonably required in connection with Client’s use of the Deliverables; provided, however, that the foregoing license will be subject to any additional terms, conditions, or limitations that may notified to Client by Defiance or the owner or licensor of such Third-Party Materials.

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(e) Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party any Intellectual Property Rights in the Defiance IP or Third-Party Materials or any other Intellectual Property Rights of Defiance by implication, waiver, estoppel, or otherwise.

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3.3  Client hereby grants Defiance a perpetual, limited, worldwide, non-exclusive, royalty-free, sublicensable (though multiple tiers), non-transferable (except in accordance with Section 10.8), and irrevocable right and license to display the following on Defiance’s website, digital platforms, portfolio sites, social media, and other marketing channels, including presentations to prospective third party clients: (a) copy and other marketing content included in any Deliverables, (b) Client’s name and logo, and (c) a reasonable characterization of the results achieved by Client through use of the Services. For clarity, the foregoing will not give Defiance the right to share any Confidential Information of Client, including Client’s advertising budget.

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4. Fees and Expenses; Payment Obligations.

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4.1  Fees and Expenses.

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(a)  In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Defiance the fees set forth in each applicable Service Statement.

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(b)  Client shall pay Defiance for all necessary and foreseeable expenses, including travel, shipping costs, advertising, marketing spend and other costs incurred by Defiance in connection with and in furtherance of the performance of the Services that have been approved in advance by Client.

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(c)  Defiance shall issue invoices to Client in advance for amounts payable to third parties in connection with any marketing campaign, including for media placements. Client expressly understands, acknowledges and agrees that Defiance shall not be required to make any such payments unless and until Defiance has received the corresponding amounts from Client, and Defiance will not be liable for any media placements or other opportunities that are lost or forfeited due to late payment.

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(d) Client shall be responsible for any and all costs and expenses that may be reasonably incurred as a result of any legal compliance requirements in connection with the Services provided hereunder, including but not limited to such costs and expenses charged by Client’s distributor.

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4.2  Payment. Client shall pay all invoiced amounts to Defiance within thirty (30) days after Client’s receipt of such invoice.

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4.3  Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of sales, use, value-added, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts payable. Client shall be solely responsible for the payment of any such amounts (excluding, for clarity, taxes imposed on Defiance’s net income or gross receipts).

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4.4  Invoice Disputes. Client shall notify Defiance in writing of any dispute with an invoice (along with substantiating documentation) within thirty (30) days from the date such invoice is received by Client. Client shall be deemed to have accepted all invoices for which Defiance does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 4.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith.

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4.5  Late Payments. Except for invoiced payments that Client is disputing under Section 4.4, Client shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law (the “Late Fee”). In addition to the Late Fee, Client shall also reimburse Defiance for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

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4.6  Direct Buys. Any Direct Buys negotiated by Defiance will be executed by Defiance based on the Client’s prior approval in writing via email. Once the Client approves, the Direct Buy is binding on the Client. Defiance will never incur any cancellation penalty should the Client wish to cancel after approving the Direct Buy expense.

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5. Representations and Warranties.

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5.1  Defiance hereby expressly represents and warrants to Client that, to the knowledge of Defiance, none of the Services or Deliverables infringes or will infringe upon any Intellectual Property Rights of any third party, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Defiance, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Defiance, if the infringement would have been avoided by the use of the Deliverables not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Defiance. Defiance’s sole liability and Client’s sole and exclusive remedy for Defiance’s breach of this Section 5.1 are Defiance’s obligations and Client’s rights under Section 6.2 (subject to Section 6.3).

5.2  Client hereby expressly represents and warrants to Defiance that:

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(a) it owns, or has license to permit Defiance to use, as contemplated hereunder, all Client Materials;

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(b) none of the Client Materials or Client’s or Defiance’s use thereof infringes or will infringe upon any Intellectual Property Rights of any third party, and, as of the date of this Agreement, there are no pending or to Client’s knowledge, threatened, claims, litigation, or other proceedings pending against Client by any third party based on an alleged violation of such Intellectual Property Rights; and

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(c) the Client Materials and other information furnished by Client to Defiance will not contain any untrue statement of a material fact, or omit any material fact necessary to make the statement therein not false or misleading.

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5.3  Client expressly understands, acknowledges and agrees that although certain of the Services may involve Defiance providing assistance to Client in formulating certain business and marketing strategies, including with respect to Client’s Intellectual Property Rights and the delivery of e-mail communications (collectively, “Client Actions”): (a) Defiance does not offer any legal advice, recommendations or counseling in connection with any legal matter, under any circumstances, and nothing Defiance does and no element of the Services should be construed as such; (b) Client shall ultimately decide whether or not to take any and all Client Actions; (c) Client shall at all times be fully responsible and liable for fulfilling and complying with any and all obligations, duties, restrictions and/or other requirements imposed by any Client Actions including, without limitation: (i) payment obligations arising in connection therewith; and (ii) any and all legal and/or regulatory requirements associated therewith; and (d) Defiance shall have no obligation or liability to Client in connection with any such Client Actions under any circumstances.

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5.4  NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE), AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, DEFIANCE MAKES NO WARRANTY THAT THE MATERIALS, DELIVERABLES AND SERVICES WILL BE ACCURATE, RELIABLE, COMPLETE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, DEFIANCE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET ANY OR ALL OF CLIENT’S REQUIREMENTS OR THAT DEFECTS WILL BE CORRECTED, AND DEFIANCE DOES NOT GUARANTEE INBOX PLACEMENT, OPEN RATES, RESPONSE RATES, OR DELIVERABILITY OUTCOMES. DEFIANCE SHALL NOT BE LIABLE FOR LOSSES ARISING FROM CLIENT MATERIALS OR THE PROVISION OF SERVICES (INCLUDING COMMUNICATIONS SENT) IN ACCORDANCE WITH ANY INSTRUCTION, INFORMATION, DESIGNS, SPECIFICATIONS, OR OTHER MATERIALS PROVIDED BY CLIENT IN WRITING TO DEFIANCE.

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6. Indemnification.

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6.1  Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Defiance, its affiliates, and its and their respective officers, directors, employees, agents, representatives, successors, and permitted assigns (collectively, “Defiance Indemnified Party”), from and against any and all losses, liabilities, damages, liens, costs, or expenses of every kind, including attorneys’ fees and litigation costs, whether or not consequential or special in nature (collectively, “Losses”) due to any claim, suit, action, investigation, or proceeding, in each case, brought by a third party (collectively, “Claims”) arising out of:

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(a) breach by Client or its personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;

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(b) negligence or more culpable act or omission of Client or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;

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(c) Client’s unauthorized use of any Services;

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(d) allegations by a third party that any Client Materials or Defiance’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property Rights of a third party; and

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(e) Client Actions.‌

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6.2  Defiance Indemnification Obligations. Defiance shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, “Client Indemnified Party”) from and against any and all Losses due to any Claims arising out of:

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(a)  material breach by Defiance or its personnel of any obligations set forth in this Agreement;

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(b)  gross negligence or willful misconduct of Defiance or its personnel in connection with the performance of its obligations under this Agreement; and

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(c)  allegations by a third party that any of the Services or Deliverables infringe any Intellectual Property Rights of a third party arising under the laws of the United States.

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If any portion of the Services becomes or in Defiance’s opinion is likely to become the subject of a claim of infringement, Defiance may, at Defiance’s option: (i) procure for Client the right to continue using the Services; (ii) replace or modify the Services to be non-infringing without materially impairing the functionality of the Services; or (iii) terminate the applicable Service Statement or this Agreement and refund to Client the pro-rated portion of any prepaid fees attributable to any unused Services.

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6.3  Exceptions and Limitations on Indemnification.

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(a)  Notwithstanding anything to the contrary contained in this Agreement, Defiance shall have no obligation to indemnify or defend Client or any Client Indemnified Party against any Claims arising out of or resulting, in whole or in part, from:

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(i)  any Client Actions or Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Defiance;

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(ii)  Client’s use of the Services or Deliverables in combination with any materials or equipment not supplied to Client or specified by Defiance in writing, if the infringement would have been avoided by the use of the Services or Deliverables not so combined;

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(iii)  any modifications or changes made to the Services or Deliverables by or on behalf of any person other than Defiance;

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(iv) Client’s willful, reckless or negligent acts or omissions; or

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(v) Client’s failure to comply with any of its obligations set forth in this Agreement.

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6.4  Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.

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6.5  EXCLUSIVE REMEDY. EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN SECTION 10.7, THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF DEFIANCE AND THE SOLE AND EXCLUSIVE REMEDY OF CLIENT FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE DELIVERABLES OR THE SERVICES.

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7. Limitation of Liability.

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7.1  NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS AND REGULATIONS, IN NO EVENT WILL DEFIANCE BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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7.2  MAXIMUM LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS AND REGULATIONS, DEFIANCE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO DEFIANCE IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

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8. Confidentiality.

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From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential, as well as the terms of this Agreement (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; or (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. However, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent such disclosure is required under applicable laws and regulations or a valid order issued by a court or governmental agency of competent jurisdiction; provided that prior to making any such disclosure, the Receiving Party shall provide the Disclosing Party with (i) prompt written notice so that the Disclosing Party may seek a protective order or other remedy and (ii) reasonably assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its representatives. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party and its representatives shall, pursuant to Section 9.3, promptly destroy all Confidential Information of the Disclosing Party and copies thereof that it has received under this Agreement.

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9. Term; Termination.

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9.1 Term. Subject to the early termination provisions set forth in Section 9 herein, this Agreement will commence on the date on which the first Service Statement is accepted by the Parties and shall remain in force until thirty (30) days after the expiration or termination of the last to expire Service Statement, if no new Service Statements are entered into by the Parties within such thirty (30) day period.

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9.2 Termination for Cause.

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(a)  A Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party”) if the Defaulting Party:

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(i)  materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), which is separately addressed in Section 9.2(b)), the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;

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(ii)  becomes insolvent or is generally unable to pay its debts as they become due;

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(iii)  files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;

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(iv)  makes or seeks to make a general assignment for the benefit of its creditors;

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(v)  applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

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(vi)  is dissolved or liquidated; or sold to another entity.

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(b) Defiance may terminate this Agreement or any Service Statement, effective upon written Notice to Client, if:

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(i) a Payment Failure by Client continues for seven (7) days after Client’s receipt of written notice of nonpayment;

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(ii) within any twelve (12) month period, two (2) or more Payment Failures occur; or

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(iii) Defiance determines in its sole discretion that this Agreement is injurious to its legal or business interests.

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9.3  Effect of Expiration or Termination.

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(a)  Expiration or termination of this Agreement will not affect any rights or obligations that:

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(i)  are set forth in Sections 2.3, 2.4, 3 (excluding any licenses which, by their terms, only apply during the term of the Agreement), 5.4, 6, 7, 8, 9.3, 10, or 11, each of which will survive expiration or termination of this Agreement; or

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(ii)  were incurred by the Parties prior to such expiration or termination, including all obligations of Client to pay for Services rendered or expenses incurred by Defiance prior to such expiration or termination.

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(b)  Upon the expiration or termination of this Agreement for any reason or at any time upon the other Party’s written request, each Party shall promptly:

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(i)  destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;

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(ii)  permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and

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(iii)  certify in writing to the other Party that it has complied with the requirements of this clause.

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(c) Upon expiration or termination of this Agreement by Client, (i) Client shall cease all use of the Services and Defiance may disable Client’s access and usage rights, and (ii) Defiance shall promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and promptly return or destroy all copies of Client Materials in Defiance’s possession; provided that nothing in this Agreement will require Defiance to destroy any aggregated and deidentified Client Materials or Deliverables.

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(d) In the period between written Notice of termination and such termination taking effect, the Parties shall continue to abide by the terms of this Agreement and comply with their respective obligations hereunder. In the event of termination, Client shall promptly reimburse Defiance for all non-cancellable expenses accrued by Defiance in connection with the performance of the Services.

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(e) Subject to Section 9.3(a) and Section 9.3(d), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.

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10. Miscellaneous.

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10.1  Entire Agreement. These Terms, together with any Service Statement referencing these Terms and any attachment to such Service Statement expressly referenced therein, constitutes the sole and entire agreement of the Parties with respect to the Services provided for in such Service Statement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

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10.2  Timely Claims. Except for claims for the payment of fees, no lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either Party more than one year after the claim arose; provided, however, that any claims asserted in good faith with reasonable specificity and in writing by Notice pursuant to Section 10.3 prior to the expiration of such period are not thereafter barred, and such claims survive until finally resolved.

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10.3  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed

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(a) if to Client, at the address set forth in the applicable Service Statement (or, if none is provided therein, such other addresses as Defiance generally uses for correspondence with Client) or

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(b) if to Defiance, at:

Defiance Analytics LLC‍

78 SW 7th St.

8th Floor

Miami, FL, 33130

Attention: Legal

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All Notices shall be delivered by email, personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving party. Either Party may modify its address(es) for receipt of Notice pursuant to this Section upon Notice to the other Party in accordance with this Section.

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10.4  Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

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10.5  Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

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10.7  Cumulative Remedies. Except as set forth in Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

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10.8 Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that Defiance may assign this Agreement to an affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of Defiance’s assets. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

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10.9  No Third-Party Beneficiaries. Except as otherwise expressly provided herein, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

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10.10  Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without giving effect to the choice-of-law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.

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10.11  Choice of Forum. Neither Party shall commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the courts of the State of New York, County of New York. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the State of New York, County of New York. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

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10.12  Force Majeure.  Other than for payment obligations arising hereunder, neither Party will be liable, or considered to be in breach of this Agreement, on account of such Party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable efforts (a “Force Majeure Event”). If any such Force Majeure Event occurs, the affected Party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

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10.13  Relationship of Parties. Nothing in this Agreement creates, or is intended to create, or will be construed to create, any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Defiance is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.

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10.14  Counterparts;  Electronically Transmitted Signatures; Interpretation. Any Service Statement may be executed in any number of separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all of which together shall constitute one and the same instrument. Any Service Statement may also be executed by .pdf with digital signatures sent by email which shall be deemed to have the same force and effect as original signatures. Use of the words “includes” or  “including” (or their derivatives) means includes or including, without limitation, and the word “or” is used in the inclusive sense (and/or).

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11. Data Protection Compliance.

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11.1  Client acknowledges and agrees that (1) Client will obtain access to certain Personal Information within the data in connection with its receipt of the Services (e.g., lead generation data); and (2) Defiance and/or its Third Party Service Providers will obtain access to certain Personal Information in connection with its performance of the Services (e.g., Client e-mail lists). Each Party agrees to the following with respect to any Personal Information made accessible under this Agreement to the other Party that is subject to the California Consumer Privacy Act, as amended, and its implementing rules (“CCPA ”):

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(a) such Personal Information is disclosed for the business purposes set forth in this Agreement; 

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(b) the receiving Party will use, retain, and disclose such Personal Information in accordance the CCPA and will notify the disclosing Party if it determines it can no longer meet its obligations under the CCPA; 

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(c) the receiving Party will maintain reasonable and appropriate information security measures to protect the Personal Information, including promptly notifying the disclosing Party of a data breach impacting the Personal Information; and 

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(d) the disclosing Party will have the right to take reasonable and appropriate steps to help ensure that the receiving Party uses such Personal Information consistent with the CCPA and this Agreement and to remediate any unauthorized use of the Personal Information, such as by exercising its termination rights under this Agreement.  

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11.2 With respect to any Personal Information that Defiance processes on behalf of Client, the Parties agree that the Defiance Data Processing Addendum shall apply and is hereby incorporated by reference. The terms “Personal Information” and “processing” used in this Section shall be construed according to their definitions in the Defiance Data Processing Addendum. For the avoidance of doubt, where Defiance independently determines the purposes and means of processing Personal Information, Defiance shall do so in accordance with its privacy policy available at: https://www.defianceanalytics.com/privacy-policy.

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11.3 Client will ensure that all necessary notices are provided, all necessary rights, licenses, authorizations, and consents are obtained, and any necessary opt-out choices are provided and honored, in accordance with applicable laws, to enable the collection, use, sharing, and other processing of the Client Materials and any information collected through a Client Digital Property under this Agreement. Client represents and warrants that such notices and consents are valid, current, and sufficient under applicable laws. Without limiting the generality of the foregoing:

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(a) Client will ensure that all consents are obtained and opt-out choices are provided and honored for purposes of the delivery of e-mail communications as part of the Services, including by (1) complying with the instructions of Defiance or a designated Third Party Service Provider to ensure that they have any records of e-mail recipients who unsubscribe from commercial e-mail from Client; (2) validating that any unsubscribe or similar compliance mechanisms offered through the Services comply with the laws applicable to Client and Client requirements; and (3) maintaining records of any unsubscribe or other compliance records relevant to the Services;   

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(b) If any pixel, tag, beacon, cookie, SDK, or similar tracking technology (“Pixel”) is implemented on any Client Digital Property in connection with the Services, Client shall provide a notice that describes, and, Client will obtain consent for the placement of, the applicable Pixel(s) and the collection and use of any data therefrom by Client, Defiance and/or the Third Party Service Providers as contemplated under this Agreement.  

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(c) While Defiance and/or its Third Party Service Providers may assist with the implementation of Pixel(s) or otherwise perform related Services under this Agreement, Client shall be responsible for ensuring the implementation of such Pixel(s) and the use of any resulting information collected therefrom is compliant with applicable law, and Defiance and its Third Party Service Providers shall not be liable for Losses arising from the use of the Pixel(s) except to the extent the Losses arise from or are caused by the fraud, gross negligence, or willful misconduct of Defiance or its Third Party Service Providers.

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Defiance Data Processing Addendum

This Data Processing Addendum (“DPA”) is incorporated into and forms part of the Agreement between Client and Defiance. The provisions of this DPA shall apply to the extent Defiance Processes Personal Information that is subject to the CCPA on behalf of the Company when providing the Services. Capitalized terms used in this DPA which are not defined shall have the meaning ascribed to them in the Agreement. To the extent of a conflict between this DPA and the Agreement, this DPA shall prevail.

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1. Definitions 

“CCPA” means the California Consumer Privacy Act, codified at Cal. Civ. Code § 1798.100 et seq, as may be amended from time to time, including its implementing regulations. 

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“Business” means a party subject to the CCPA as defined in Cal. Civ. Code § 1798.140(d). 

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“Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, as defined in Cal. Civ. Code § 1798.140(v). 

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“Processing” (and its cognate forms) means any operation or set of operations that are performed on Personal Information or on sets of Personal Information, whether or not by automated means.

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“Service Provider” means a party that Processes Personal Information on behalf of a Business. 

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“Sale” or “Sell” means disclosing Personal Information to a third party for monetary or other valuable consideration, as defined in Cal. Civ. Code § 1798.140(ad). 

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“Share” disclosing Personal Information to a third party for cross-context behavioral advertising, whether or not for monetary or other valuable consideration, as defined in Cal. Civ. Code § 1798.140(ah).

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2. General 

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a. For purposes of this DPA, the Parties acknowledge and agree that Client is a Business and Defiance is a Service Provider under the CCPA, and Client is disclosing Personal Information to Defiance for the limited and specific business purposes specified in the Agreement. 

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b. The Parties shall each comply with the CCPA and providing the same level of privacy protection as required of businesses by the CCPA. 

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3. Client Obligations 

When Processing Personal Information as a Business, Client shall ensure that its Processing of Personal Information and instructions to Defiance comply with the CCPA, including by verifying that any Personal Information it discloses to Defiance has been obtained in accordance with the CCPA, including by providing any required notices to or obtaining any required consents from consumers, and fulfilling all other obligations necessary to ensure the lawful Processing of Personal Information by Defiance. 

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4. Defiance Obligations

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To the extent Defiance Processes Personal Information on behalf of Client, Defiance shall: 

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a. Process Personal Information on behalf of Client in accordance with Client’s instructions; 

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b. Not retain, use, disclose, combine, or otherwise Process Personal Information except in the context of the direct business relationship between Defiance and Client as set out in the Agreement, and as otherwise necessary for the business purposes and the performance of the Services as specified in the Agreement, unless otherwise permitted by the CCPA;

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c. Not Sell or Share Personal Information it collects or receives pursuant to the Agreement with Client;

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d. Implement reasonable and appropriate information security measures to protect Personal Information from unauthorized or illegal access, destruction, use, modification, or disclosure (“Security Incident”), and promptly notify Client if it becomes aware of a Security Incident affecting Personal Information Processed on behalf of Client;

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e. Inform the Client of any requests it receives from consumers in relation to their Personal Information, cooperate with Client in responding to and complying with such requests, and enable the Client to comply with such requests; 

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f. Enable Client to take reasonable and appropriate steps to confirm compliance with this DPA and the CCPA and, upon notice, to stop and remediate any unauthorized Processing of Personal Information under this DPA;

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g. Not subcontract the Processing of Personal Information under this DPA to another party unless Defiance has entered into a contract with such party that includes provisions substantially similar to this DPA; and

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h. Notify Client if it can no longer meet its obligations under this DPA.

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