Publisher shall collect and provide Client with “Student Records” as further specified herein and as described in Insertion Orders (“IO”) that may be executed by the parties from time to time. Each executed IO shall automatically be incorporated into and become part of and subject to these terms and conditions (these terms and conditions together with any applicable IO constitutes the “Agreement”).
Student Records may include contact, demographic and Personal Information (as defined below) pertaining to users who have opted-in to Client’s promotional offer (the “Co-Reg Offer”) in Publisher’s registration flow. The targeting parameters and the data fields to be included in each Student Record shall be listed in the IO. Client may not resell or transfer and Student Record to any third party. Publisher shall send Client Students Records in accordance with the IO specifications, in a format to be mutually determined by the parties.
Client shall provide Publisher with content and creative materials to be included in the Co-Reg Offer, which will be subject to review by Publisher. Positioning and scheduling of the Co-Reg Offer on Publisher’s site and its registration flow remains in Publishers sole discretion and Client acknowledges that Publisher makes no guarantees with respect to the number of Student Records that will be generated.
Client agrees to pay Publisher the amount set forth in the IO for each Student Record up to the monthly maximum. Publisher will perform a basic check of each Student Record to determine whether it is a valid opt-in request and meets the specifications set forth in the IO. If Client disputes any Student Record, such Student Record must be returned by the Client to Publisher with an explanation of why the Client believes the Student Record does not conform with the specifications set forth in the IO within five days of delivery to the Client. Publisher will review all disputed Student Records and shall invoice Client only for those records that conform with the specification set forth in the IO. Disputed Student Records not returned or returned without an explanation or reason code shall not be refunded. Client shall pay Publisher amounts owed under this Agreement within 30 days of Client’s receipt of Publishers invoice for Student Records delivered in the preceding month.
Each of Publisher and Client owns its respective web site(s) and the material and content on such web sites. Except as set forth in the next sentence, nothing herein grants to one party any right, title, or license to the other party's intellectual property rights. Client grants to Publisher a nonexclusive license to set up and display the Co-Reg Offers (including any name, trademarks and service marks contained therein) on Publisher’s website during the Term of this Agreement. Upon termination of this Agreement, Publisher will remove all Co-Reg Offers and any Client content from Publisher’s website(s). Nothing in this Agreement grants Client any right to use the name, trademark, or service mark of Publisher in any advertisement, commercial email communication, sales promotion or press release without Publisher’s prior written approval.
Publisher represents and warrants that it has all necessary rights to provide the Student Records to Client and allow Client to use the Student Records as set forth herein. Publisher further represents and warrants that it has obtained the Student Records in compliance with all applicable federal and state law, rule and regulation, including those related to data privacy and consumer protection.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO THE STUDENT RECORDS, AND PUBLISHER SHALL HAVE NO LIABILITY TO CLIENT RESULTING FROM ITS USE OF THE STUDENT RECORDS.
Each party shall keep the terms of this Agreement confidential and not disclose them to any third party (other than to its attorneys and accountants) without the other party’s prior written consent, except as required by law. Client shall not disclose the Student Records or any Personal Information contained therein to any third party other than a contractor or subcontractor who agrees to keep such information confidential.
Client hereby agrees to indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorney’s fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings made or initiated by third parties (collectively “Third Party Claims”) arising out of or relating to (i) any material breach by Client of any covenant, representation or warranty hereunder; and (ii) use by Client of the Student Record in violation of the terms of this Agreement. Publisher will provide notice to Client promptly of any such claim, action or demand and shall assist Client, at Client’s expense, in defending any such claim, action or demand.
Publisher hereby agrees to indemnify, defend and hold harmless Client and its officers, directors, agents, affiliates and employees from and against all Third Party Claims arising out of or relating to any material breach by Publisher of any covenant, representation or warranty hereunder. Client will provide notice to Publisher promptly of any such claim, action or demand and shall assist Publisher, at Publisher’s expense, in defending any such claim, action or demand.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR ANY IO, EXCEPT FOR OBLIGATIONS OF INDEMNIFICATION OR A BREACH OF AN OBLIGATION OF CONFIDENTIALITY, TO THE EXTENT ARISING OR RESULTING SOLELY FROM A THIRD PARTY CLAIM, (A) NO PARTY WILL BE LIABLE TO ANY OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE STUDENT RECORDS OR THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND (B) PUBLISHER’S S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE STUDENT RECORDS PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO PUBLISHER HEREUNDER.
Personal Information Protection.
“Personal Information” means any and all information contained in a Student Record that relates to or identifies an individual or can be used to identify an individual: (i) name; (ii) home or other physical address, including street name and name of city or town; (iii) email address or other online contact information that reveals the email address; (iv) telephone number; (v) date of birth (vi) persistent identifier that is combined with other available data that identifies an individual; (vii) any information that is combined with any of the foregoing, and any information derived therefrom, all of the foregoing whether in individual or aggregate form and in any media.
Client shall comply with all applicable (i) international, federal, state, provincial and local laws, rules, regulations and governmental requirements now or hereafter in effect, including without limitation relating to privacy, data protection, confidentiality or security of Personal Information, and including without limitation the Massachusetts Standards for The Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00) (“Massachusetts Regulation”) and, to the extent applicable, the E.U. Directive on Data Protection (collectively, “Legal Requirements”).
Client will take reasonable steps to verify that employees, agents, consultants and subcontractors (collectively “Personnel”) with access to Personal Information have the capacity to protect such Personal Information, including by selecting and retaining Personnel that are capable of maintaining safeguards for Personal Information and contractually requiring Personnel to maintain such safeguards.
Without limitation of any other obligation contained in this Agreement, Client shall establish controls to ensure the confidentiality, security, and integrity of Personal Information, including by implementing and maintaining appropriate administrative, technical and physical safeguards and other appropriate security measures (including without limitation measures to protect computer hardware, software and internet security systems with regard to Client’s collection, processing, storage, use, disclosure or disposal of Personal Information), designed to ensure that Client and its Personnel (i) maintain the security and confidentiality of Personal Information; and (ii) protect against any anticipated threats or hazards to the security and integrity of Personal Information.
The term of this Agreement is set forth in the IO. Either party may terminate this Agreement by giving written notice to the other party at least thirty days in advance of such termination. Any provision of this Agreement which by its nature should survive the termination of this Agreement, shall survive any such termination or expiration.
The parties hereby consent and agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its conflict of laws principles.
Any notices are required to be supplied to either party hereunder, shall be sent via first class mail to the addresses provided on the IO.