Persons and companies licensing the National Psoriasis Foundation (NPF) mailing list are required to sign this agreement indicating they acknowledge and agree to the following:
TERMS AND CONDITIONS
This license agreement (“Agreement”) is entered into as of the Effective Date by and between NPF and Customer as identified on the Mailing List License Application Form of this Agreement.
- Licensed List. “Licensed List” means the NPF mailing list data supplied by NPF to the bonded mail house indicated on the Mailing List License Application Form.
- Ordering and Fees. Customer must complete the Mailing List License Application Form of this Agreement in order to obtain a license to the Licensed List. The license fee must be paid to NPF in advance. NPF, in its sole discretion, may refuse to license the Licensed List for any reason.
- License. Subject to Customer’s full compliance with the terms and conditions of this Agreement, NPF grants to Customer a personal, non-exclusive, non-transferrable, non-assignable, right to use the Licensed List one time only solely for the purpose indicated on the Mailing List License Application Form. The mailing must be completed not later than threemonths following the Effective Date. Customer must include in the addresslabel any identifying information provided by NPF, and Customer may not alter or remove such information. Customer’s compliance with this license will be monitored through various techniques, including seeded addressees. Customer may not interfere with such monitoring.
- Delivery. The Licensed List will not be provided directly to Customer. Instead, the Licensed List will be sent directly to the mail houseindicated on the Mailing List License Application Form (“Mail House”) in electronic format. The Mail House must be a legitimate, bonded mail house facility which is acceptable to NPF. Customer must require the Mail House: (a) to preserve the confidentiality of the Licensed List; (b) to use the Licensed List only as specified in this Agreement and only on behalf of Customer; (c) not disclose Licensed List to Customer or to any third party;
(d) after mailing, to permanently destroy the Licensed List; and (e) recognize NPF as a third-party beneficiary of the agreement between Customer and Mail House.
- License Restrictions. Except for the express license granted to Customer in Section 3 of this Agreement, Customer has no other right, express or implied, to any use of the Licensed List or any other proprietary information owned by NPF. Notwithstanding any other provision of this Agreement, Customer may not: (a) allow access to, disclose, transfer or distribute the Licensed List to any third party other than (i) disclosure of each recipient’s information to such recipient in conjunction with the mailing and (ii) to the Mail House, but only if the Mail House has agreed to protect the Licensed List to at least the same degree as the requirements of this Agreement; (b) reproduce the Licensed List except as strictly necessary to use the Licensed List as authorized in this Agreement; (c) rent, sublicense, lease, or sell the Licensed List, or make any attempt to do so; (d) make derivative works of the Licensed List or combine the Licensed List with any other database; (e) use the Licensed List to perform any illegal, distasteful, dishonest, or fraudulent act, to damage or injure a third party, or to infringe the intellectual property or privacy rights or any person or entity; or (f) use the Licensed List in any manner that could be detrimental to NPF.
- Destruction of Licensed List. On termination of this Agreement, or upon the earlier completion of the mailing, Customer must promptly destroy, and Customer must cause the Mail House to destroy, all copies of the Licensed List or any part thereof (including electronic files, disks, and printouts).
- Confidentiality. The Licensed List is a valuable proprietary trade secret of NPF, is of a highly confidential nature, and is protected by copyright law. Customer must hold the Licensed List, and cause the Mail House to hold the Licensed List, in strict confidence except as required to exercise Customer’s express rights granted in this Agreement. Customer must promptly report anybreach of these confidentiality provisions to NPF.
- Ownership. The Licensed List is licensed, not sold, to Customer. As between NPF and Customer, NPF owns all right, title, and interest in and to the Licensed List, as well as the intellectual property embodied therein and related thereto.
- Accuracy of List. NPF uses commercially reasonable efforts to ensure the accuracy of the Licensed List. However, due to the nature of the Licensed List, NPF does not guarantee or warrant that the Licensed List is accurate, complete or timely. The Licensed List is used at Customer’s sole risk and peril. Customer willindemnify and hold harmless NPF for all damages, liability, costs (including attorneys’ fees and costs) incurred by NPF resulting from Customer’s use of the Licensed List orbreach of this Agreement. NPF will not be responsible for undelivered mail resulting from use of the Licensed List.
- Disclaimer of Warranty and Limitation of Liability. The Licensed List is licensed “as is.” NPF makes no warranties, whether express or implied, with respect to the Licensed List or any services related thereto. NPF hereby expressly disclaims the implied warranties of title, merchantability, fitness for a particular purpose, accuracy of List, non-infringement, and non-interference. NPF will not be liable for any consequential,indirect, or special damages, including lost profits, even if NPF knew or should have known about thepossibility of such damage. In no event may NPF’s liability under or related to this Agreement exceed the amount of the license fees paid by Customer to NPF pursuant to this Agreement.
- Term. This Agreement is effective as of the date accepted by NPF (“Effective Date”), and will remain in effect until the earlier of (i) Customer’s one-time use of the Licensed List, (ii) threemonths after the Mail House receipt of the Licensed List from NPF, or (iii) Customer’sbreach of this Agreement. Upon termination or expiration, all rights and obligations set forth in this Agreement will cease except for (a) Customer’s obligation to pay fees owed to NPF prior to termination or expiration; and (b) Section 1, 5, 6, 7, 8, 9, 10, 11, and 12, which will survive termination.
- Remedies. Because of the proprietary nature and high value of the Licensed List, anybreach of this Agreement by Customer will result in irreparable injury to NPF that cannot be compensated solely by damages. Therefore, NPF will be entitled to seek and obtain injunctive relief to protect the Licensed List without posting bond. In addition to all other remedies, NPF may recover its attorneys’ fees and costs in connection with the enforcement of this Agreement or collection of damages related to this Agreement. Because the amount of damages will be difficult to ascertain, the minimum damage amount (in addition to equitable relief) will be no less than $25,000 for each unauthorized use, but NPF is entitled to prove damages exceed such amount.
- Miscellaneous Provisions
13.1. Binding Effect. This Agreement is binding on and inures to the benefit of the parties and their heirs, personal representatives, successors, and permitted assigns.
13.2. Assignment. This Agreement is freely assignable by NPF. Customer may not assign any rights or delegate any duties under this Agreement without the prior written consent of NPF.
13.3. Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, whether written or oral, between the parties with respect to such subject matter.
13.4. Amendments. This Agreement may be amended only by an instrument in writing executed by both parties, which writing must refer to this Agreement.
13.5. Waiver. A provision of this Agreement may be waived only by a written instrument executed by the party waiving compliance. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision.
13.6. Consent. Whenever this Agreement requires or permits consent by or on behalf of a party, such consent must be given in a manner consistent with the requirements for waiver as set forth in Section 13.5.
13.7. Notices. Each party’s address and fax number is as indicated on the Mailing List License Application Form of this Agreement. Any party hereto may change its address or fax number for purposes of this section by written notice given in the manner provided above. Any notice mailed to the last designated address of any person or party to which a notice may be or is required to be delivered pursuant to this Agreement will not be deemed ineffective if actual delivery cannot be made due to a change of address (without written notice to the other party) of the party to which the notice is directed, or the party fails or refuses to accept delivery of the notice.
13.8. Attorney Fees. If any arbitration, suit, or action, including any proceeding brought under the United States Bankruptcy Code, is filed or commenced by any party to interpret, enforce, or rescind this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party will be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such arbitration, suit, or action as fixed by the arbitrator, trial court, or bankruptcy court, and if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court.
13.9. Construction. The headings used in this Agreement are solely for convenience of reference, are not part of this Agreement, and are not to be considered in construing or interpreting this Agreement. References in this Agreement to “Section” or “Sections” without additional identification refer to the Section or Sections of this Agreement. Any indication of gender of a party in this Agreement will be modified, as required, to fit the gender of the party or parties in question. Whenever the singular number is used in this Agreement and when required by the context, the plural is included, and vice versa. Every covenant, term and provision of this Agreement is to be construed simply according to its fair meaning and not strictly for or against any party. The parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of the intent or interpretation arises, this Agreement must be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law will be deemed to also refer to all rules and regulations promulgated thereunder unless the context requires otherwise. Whenever the words include or including are used in this Agreement, they will be deemed to be followed by the words without limitation.
13.10. Counterparts. This Agreement may be executed in separate counterparts, each of which when executed and delivered will be an original, but all of which together will constitute one and the same instrument.
13.11. Electronically Transmitted Signatures. Electronic (including fax) transmission of any signed original document, and retransmission of any signed electronic transmission, will be the same as delivery of an original. At the request of either party, the parties must confirm electronically transmitted signatures by signing an original document.
13.12. Severability. If any provision of this Agreement is invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement will not be impaired.
13.13. Time of Essence. Time is of the essence for each and every provision of this Agreement.
13.14. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, confers any right, remedy, or claim of any nature whatsoever on any person other than the parties to this Agreement.
13.15. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement. If any suit or action is filed by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, exclusive jurisdiction and venue will be in the federal or state courts in Portland, Oregon. The parties consent to personal jurisdiction of the state and federal courts for the State ofOregon in any lawsuit filed there arising from or related to this Agreement.
13.16. Rights and Remedies. The rights and remedies provided by this Agreement are cumulative, and are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. The use of any one right or remedy by any party will not preclude or waive the right to use any or all other remedies.
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