By using etailinsights.com or app.etailinsights.com, you agree to the Terms and Conditions below. You may only use data from etailinsights’ website(s) within the guidelines specified below, whether you have signed an Order Form or not. Viewing any page constitutes your acknowledgement that you will hold Etailinsights harmless from any and all damages, including those due to errors or omissions. Etailinsights reserves the right to refuse Access to any Trials or Try it Now requests in Etailinsights’ sole discretion.

Terms and Conditions

etailinsights® is a registered trademark of Etailinsights, Inc.

Last Modified: 6/19/2024

By executing a corresponding etailinsights Subscription Order Form (the “Order Form”) between Etailinsights, Inc., a North Carolina corporation with an address of 150 Wrenn Drive #5363 Cary, NC 27512 (“Company”) and the “Customer” named therein (“Customer”), as may be renewed from time to time, the Company and Customer agree that these Subscription License Terms and Conditions (the “Terms of Use”) shall govern all Access by or on behalf of the Customer and its “Users” (as specified on the Order Form) of the Site, Services and Information provided to Customer by Company.

Definitions

“Access” shall mean any visit to or viewing of the Site or access to or use or display of the Services or Information.

“Basic Contact Information” shall mean a subset of Information accessible from the Site constituting (a) basic contact information for eCommerce companies described in the Site, and (b) Executive contact information for eCommerce company Executives described in the Site.

“Information” shall mean the “Information” as defined on the corresponding Order Form.

“Order Form” shall mean the “etailinsights subscription Order Form” executed by Company and Customer for the Services along with any Renewals thereof, all the terms and conditions of which are incorporated by reference herein.

“Services” shall mean the “Services” as defined and specified on the corresponding Order Form.

“Site” shall mean the “Site” as defined on the corresponding Order Form.

“Points” are allocated to each client as defined on the corresponding Order Form. Points may be used during the Term for various actions including Downloads, Requests, and more actions, as allowed from time to time by Company in Company’s sole discretion. Company may elect to reward Users with additional points in Company’s sole discretion. As points are used and/or awarded, the “# of Available Points” will change and be represented as the Points Bank. Customer may never use more Points than available in the current balance of their Points Bank. Company will count and track the # of Available Points in the Points Bank in Company’s sole discretion.

“Downloads” are provided to Customer as defined on the corresponding Order Form. Customer may export from the Site (whether into a .CSV spreadsheet file, vCard, via CRM Integration Services or as otherwise made available by Company) the number of individual executive records (“Executives”, and each such download, a “Download”) or company records (“Company Profiles”, and each such download, a “Download”) up to the “# of Available Points” for the selected edition during the Term as specified on the corresponding Order Form. Each export or Download of the same Executive or Company Profile will count as separate Downloads, and Customer authorizes each of its Users to perform such exports on behalf of Customer. Company will count all Downloads. All Downloads must be used before the end of current Term and do not rollover to any subsequent or renewal Term(s).

“Requests” are provided to Customer as defined on the corresponding Order Form. If a User does not find a company within the etailinsights application, they may request a new company profile to be created and certified by Company (“Requests”). Customer may only submit a maximum number of Requests as specified on the corresponding Order Form. If unspecified on a corresponding Order Form, then Company may elect not to fulfill Requests in Company’s sole discretion. Company may elect to accept or reject Requests in Company’s sole discretion. All accepted and completed Requests will be charged Points from the Points Bank as defined on the corresponding Order Form. Customer may not request more profiles than the maximum # of requests as specified on the corresponding Order Form. Company will count all Requests.

“Customer Contributions” – “Creative Contributions” and “User Contributions” and “Customer Contributions” are all synonymous to ultimately mean contributions to the etailinsightsapplication via uploading data in any manner as further described in Section 10 below.

All terms capitalized but not defined in these Terms of Use shall have the meanings ascribed to them in the Order Form.

Licenses

1.1 Subject to the terms and conditions of these Terms of Use and the Order Form, Company grants to Customer a non-exclusive, non-sublicensable, non-transferable license solely for its Users to Access the Site, Services and Information made available by Company, in each case solely during the Term (“License”). Company retains all ownership rights (including copyrights and other intellectual property rights) in the Site, Services, and Information (collectively, “Company Property”) in any form, and Customer obtains only such rights as are explicitly granted in these Terms of Use and such Order Form. Customer warrants that although Access is granted in these Terms of Use, Customer expressly waives all rights of ownership of Company Property, including but not limited to all data obtained during the Term and thereafter.

1.2 Subject to the terms and conditions of these Terms of Use and the Order Form, Company grants to Customer a non-exclusive, non-sublicensable, non-transferable, perpetual license solely for its Users to continue to use Basic Contact Information made available by Company to Customer solely to the extent exported by Customer into its own systems during the Term (subject to limitations on Downloads as may be applicable) (such right, the “Perpetual License”). For clarity, after the Term, Company has no obligation whatsoever to provide updates to Basic Contact Information, and Customer acknowledges that its continued use of such exported Basic Contact Information will quickly become out of date as eCommerce companies and their Executives change.

1.3 Company reserves the right to change or update the Site, Services or Information at any time without notice, including without limitation to accommodate evolving technology and increased network demand, and to enhance and update the Site, Services or Information.

Restrictions on Use

2.1 Access (i) shall be limited only to the number of Users specified in the Order Form; (ii) shall be limited only for each such User’s individual use; and (iii) shall not be shared with any other persons or entities, either internally or externally. Each User shall be a W2 employee (or equivalent) of the Customer authorized by Customer for Access. Users may only Access the etailinsightsapplication from within the United States, Canada, United Kingdom, or other locations as approved in writing by Company and in Company’s sole discretion. Company reserves the right to deny Access to any and all users in excess of the number of Users specified in the Order Form. Customer shall not make available a user name and password to a party that is not a User, and shall use reasonable measures to prevent unauthorized access to, or use of, the Site, Services or Information by any person or entity other than an authorized User. Customer agrees to access the Site, Service and Information only through human use of the provided web interface. Systematic access or extraction of content from the Site, Services or Information, including, but not limited to, by the use of “bots” or “spiders,” is expressly prohibited.

2.2 Use of the Site, Services and Information are licensed for Customer’s internal use only and shall be subject to all restrictions set forth herein and in the Order Form. Customer will not (i) provide access to the Site, Services or Information to third parties, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise; (ii) use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties (including without limitation as the basis for providing recommendations to others); (iii) use or permit the use of Information to prepare any comparison to other informational databases that are or will be provided to third parties; or (iv) voluntarily produce Information in legal proceedings. UNDER NO CIRCUMSTANCES WILL CUSTOMER RE-SELL, OR OTHERWISE MAKE AVAILABLE TO ANY THIRD PARTY, ANY ACCESS TO THE SITE, SERVICES OR INFORMATION.

2.3 The Information is intended to facilitate Customer identification of potential eCommerce prospect companies for Customer to engage in a business relationship with such prospects. Customer will not use Information as a factor in establishing an individual’s eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment. Customer will not use the Site, Services or Information to engage in any unfair or deceptive practices. Customer will use the Site, Services and Information only in compliance with all applicable local, state, federal and international laws, rules, regulations and ordinances, including, but not limited to, commercial e-mail (e.g. CAN-SPAM), text messaging (eg: TCPA and CTIA), telemarketing, customer solicitation (including fax and/or direct mail solicitation), data protection and privacy, and other laws and regulations promulgated by the Office of Foreign Assets Control, applicable trade sanctions and export restrictions.

2.4 Upon expiration of the Term or any earlier termination of the License, unless Company instructs Customer in writing otherwise, Customer will immediately delete or destroy all originals and copies of the Information, as applicable, and upon request, provide Company with certification thereof; provided, however, that Customer may retain Basic Contact Information for use consistent with the Perpetual License.

2.5 Company reserves the right to audit, monitor and inspect Customer’s use of the Site, Services and Information to ensure compliance with these Terms of Use and prevent fraudulent use or other use not in compliance with these Terms of Use. Such monitoring of use may include but will not be limited to determining whether or not the Site, Services or Information are accessed from multiple computers, as well as noting downloads beyond the limit of the total number of records as may be set forth in the applicable Order Form or Access by a disproportionate number of Users. Company reserves the right to limit Access to the Site, Services and Information in accordance with these Terms of Use through any mechanism it chooses, including without limitation by imposing restrictions on (i) viewing or printing using a third party web browser print function, or (ii) downloading a maximum number of records per search. In addition, all Users shall be bound by any access and download limitations per search session that are built-in to the Site, Services and Information. For each consecutive 12-month period during the Term, commencing with the Effective Date, Customer and its Users shall be limited to the number of Downloads as may be set forth in the applicable Order Form. All Download limitations will be enforced at Company discretion. If Company’s audit, monitoring or inspection indicates that Customer or any of its Users are not in compliance with these Terms of Use or if fraudulent activity is suspected, Company reserves the right to take such action as it deems appropriate, including, but not limited to, suspension or termination of all Access to the Site, Services or Information.

2.6 Without limiting the foregoing, Customer agrees that it and all Users Accessing the Site, Services or Information must fully comply with the following parameters at all times:

(a) Use of Information Obtained via Site/Services. Company has no actual control over Customer use of Information outside the Site. Customer’s and its Users’ Access shall not be for any purposes or in any manner that is illegal or improper, including, without limitation, the following:

For any purpose, activity or in any manner that is criminal, illegal or actionable;
In violation of any local, state, national or international laws, regulations or conventions;
To illegally ‘spam’ anyone or to sell, give, make available or otherwise distribute information to a spammer or for the purpose of spamming;
For unethical marketing activities;
To associate, attribute, collect, store, distribute or otherwise process any non-business information related to anyone;
To communicate with anyone using language or in any manner that is sexually explicit, profane, pornographic, immoral, obscene, vulgar, offensive, violent, dangerous, harmful, threatening, abusive, harassing, hateful, discriminatory, or racially, ethnically or otherwise objectionable;
To prepare or compile information that is distributed in any manner or form to any third-party;
To enhance, verify, supplement, append, confirm, or modify any compilation of information that is thereinafter distributed in any manner or form to a third-party;
In connection with any individual credit, employment, or insurance decision;
To disclose or solicit the private, non-business, information of any person;
For sale, re-sale, sub-license, commercial use, or redistribution of any kind, without Company’s express, prior written consent.

(b) Restrictions on Inputting Information. Customer shall not enter illegal or improper information into the Site or otherwise through the Services, including, without limitation, the following:

Information that is false, inaccurate, incorrect, incomplete, inexact, outdated or otherwise wrong;
Information subject to confidentiality, non-disclosure, non-competition, trade secret or proprietary rights, limitations or restrictions;
Information that infringes the copyrights or other intellectual property rights of others;
Information that is personal or non-business related, including, home addresses, Social Security numbers and credit card numbers;
Mobile or cellular telephone numbers;
Information that is sexually explicit, profane, pornographic, immoral, obscene, vulgar, offensive, inflammatory, violent, dangerous, harmful, threatening, abusive, harassing, hateful, discriminatory or racially, ethnically or otherwise objectionable, or which may solicit information from anyone under the age of 18;
Information that is defamatory, libelous, fraudulent, knowingly incorrect, or invasive of privacy or publicity rights of others;
Information that advocates or encourages conduct that could constitute a criminal offense;
Information that is actionable or may subject Company to legal action or liability of any kind;
Information that violates any applicable local, state, national or international law, regulation, or convention; or
Information that violates any provision of these Terms of Use or any other agreement or policy set forth by Company.

(c) Acts against the Site/Services. Customer shall not attempt to or engage in potentially harmful acts that are directed against the Site, Services, or Information including, without limitation, the following:

Using the Site, Services, or Information in contravention of any other agreement to which Customer is a party or otherwise is bound, including without limitation any employment agreements;
Causing, allowing or assisting any other person to use Customer’s account or impersonate Customer or any of its Users;
Sharing Customer’s or any User’s password or login with any other person;
Logging onto or otherwise accessing a server or account that Customer is not authorized to access;
Forging screen names, manipulating identifiers, or otherwise impersonating any other person or misrepresenting Customer or any User’s identity or affiliation with any person or entity;
Emulating or faking usage of the Site, Services, or Information;
Violating or attempting to violate any security features of the Site, Services, or Information;
Using manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any pages contained in the Site;
Falsely stating or otherwise misrepresenting Customer or User affiliation with any person or entity;
Introducing viruses, worms, software, Trojan horses or other similar harmful code into the Site, Services, or Information;
Interfering or attempting to interfere with the use of the Site, Services, or Information by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Site;
Causing, allowing or assisting machines, bots or automated services to access or use the Site, Services, or Information without the express written permission of Company;
Tampering with the operation, functionality or the security of the Site, Services, or Information;
Attempting to override or circumvent any security or usage rules embedded into the Site, Services, or Information that permit digital materials to be protected;
Attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or breach any security or authentication measures;
Misusing, tricking, disrupting or otherwise interfering with the functioning of the Site, Services, or Information;
Harvesting or collecting email addresses or other contact information of other users from the Site by electronic or other means;
Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for any underlying intellectual property used in connection with the Site, Services, or Information;
Engaging in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Site;
Uploading, posting, transmitting, sharing, storing or otherwise making available any content that Company deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable; and
Without Company’s prior express written consent, advertising or selling any products, services or otherwise (whether or not for profit), or soliciting others or using the Site for commercial purposes of any kind.

2.7 Suspected Misuse and Penalties. Company shall be the sole and final arbiter of suspected violations of the restrictions set forth in this Section 2. For suspected violations, and without limiting any of its other remedies, Company reserves the right to immediately and without notice:

Delete or modify content;
Suspend Customer’s and/or any User’s account;
Terminate Customer’s and/or any User’s account;
Identify Customer to third parties including law enforcement; or
Take legal action.

Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Use or of any applicable laws. Company reserves the right to seek civil, criminal or injunctive relief, at its sole discretion and without obligation, to enforce the restrictions set forth in this Section 2.

2.8 To the extent Company, as processor on Customer’s behalf, Processes any Personal Data protected by Data Protection Laws (both defined in the DPA), both Customer and Company shall be subject to and comply with the Data Processing Agreement (“DPA”), which is incorporated into and forms an integral part of these Terms of Use. The DPA sets out Customer and Company’s obligations with respect to data protection and security when processing Personal Data on Customer’s behalf in connection with the Services. Customer has provided, and will continue to provide, a clear and conspicuous notice regarding its Processing of Personal Data, and has obtained, and will continue to obtain, all consents, authorizations, and rights necessary under Data Protection Laws to Process Personal Data, Information, or Customer Contributions, as applicable, for the purposes contemplated in the Order Form.

Payment

3.1 Customer will pay Company in accordance with the Order Form. Prices shall be as set forth in the Order Form. A late payment charge of the lesser of 1½% per month or the highest lawful rate may be applied to any outstanding balances until paid, plus a collection fee of 30%, and Customer shall be responsible for paying all such late payment charges.

3.2 Customer will pay Company for any applicable taxes relating to the Company’s provision of Services and Information, other than taxes based on Company’s income.

3.3 Customer authorizes Company to store and continue billing Customer’s provided credit card for the initial subscription, renewal subscriptions, and any additional “Services” as specified in the Order Form or Statement of Work. Customer is responsible for notifying company of any changes to the provided credit card to avoid service interruptions in Company’s subscription and to facilitate easy payment for new “Services”. All credit card transactions include a 3% processing fee.

Disclaimers

4.1 Though Company uses extensive procedures to keep its database current and to promote data accuracy, Customer acknowledges and agrees that the Information will contain a degree of error.

4.2 ALL COMPANY PROPERTY AND DATA IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. OTHER THAN AS EXPLICITLY STATED IN THESE TERMS OF USE, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, COMPANY CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING THE SITE, SERVICES OR INFORMATION OR PROVIDING ACCESS THERETO. CUSTOMER SHALL HOLD COMPANY HARMLESS FOR ANY LIABILITY THAT MAY OCCUR AS A RESULT OF ANY ACCESS, INCLUDING BUT NOT LIMITED TO ANY LIABILITY ARISING OUT OF INACCURATE INFORMATION, LOSS OF DATA OR OTHERWISE.

4.3 All data is delivered on an AS IS basis and under no circumstances will Company be liable in any way for Personal Data, Information or other data in the database, including any errors, or loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or the database. Notwithstanding the foregoing, it is Company’s goal to maintain an accurate database utilizing an in-house research team. To stand behind their work, 100% of Company Profiles designated as Research Team Certified are subject to the below Contact Accuracy Guarantee from etailinsights. For a Company Profile to be considered “Research Team Certified” it means that the Company Profile both a) displays a blue certification badge, and b) Executives displayed on the Company Profile are current and accurate based on all available data reviewed by the etailinsights team. Recognizing that all contact information and other executive data can never be 100% accurate, considering the potential for data to change over time and for some data changes to go unreported, Company offers the following Contact Accuracy Guarantee: “If a User discovers that any Research Team Certified Company Profile contains inaccurate contact information for any executive displayed, and the same User reports such finding to etailinsights via submission of a User Flag, etailinsights will issue a credit of points for future downloads to the same User in etailinsights’ sole discretion based on factors such as the number of instances correctly reported and the accuracy of any new data reported (The “Contact Accuracy Guarantee”).”

Copyrights and Other Proprietary Rights

5.1 Company Property is proprietary to Company and its affiliates and may include copyrighted works, trade secrets, or other materials created, conceived, or otherwise developed by Company or its affiliates at great effort and expense. Customer will not disclose, contest the validity of Company or its affiliates’ ownership of, or impair the value of, Company Property in any way. Customer will reproduce Company or its affiliate’s copyright and other proprietary rights notices on any and all copies of Company Property permitted hereunder. In the event that, by operation of law or otherwise, any right, title, or interest in or to any Company Property shall vest in Customer or any User, Customer hereby irrevocably and unconditionally assigns to Company, and shall cause each and every such User to irrevocably and unconditionally assign to Company, and forever waives and agrees never to assert, and shall cause each and every such User to forever waive and agree never to assert, all such right, title, and interest.

5.2 Customer will not use any trademark, service mark, trade dress, or trade name of Company or its affiliates or publish any press releases relating to these Terms of Use or any Order Form. Customer shall not disclose the negotiated pricing or terms of these Terms of Use, or any Order Form, to any third party.

5.3 Company represents to Customer that, as of the Effective Date, to Company’s knowledge, the most current versions of the Information, when used in accordance with these Terms of Use, does not violate any existing U.S. copyrights, patents, trademarks, or other intellectual property rights of any third party. If the Information does not comply with this representation, Customer’s sole remedy and Company’s sole obligation will be to use commercially reasonable efforts to (a) procure for Customer the right to continue to use the Information as set forth in these Terms of Use; (b) provide a reasonable workaround solution, or (c) replace or modify the Information to make its use non-infringing or, if alternatives (a) – (c) are not practicable, to refund a prorated portion of the fees paid by Customer for the affected Information and terminate this Agreement as to the affected Information upon written notice to Customer.

5.4 Customer shall implement and maintain security measures with respect to the Information in Customer’s possession that effectively restrict access to Information only to Users with a need to know, and protect Information from unauthorized use, alteration, access, publication and distribution. Without limiting the foregoing, in no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply Company with a detailed description of such security measures at Company request. In the event of an actual or suspected breach of such security measures, Customer shall notify Company within 24 hours. Customer and Company acknowledge that only Customer employees acting in a sales capacity shall have access to the Information as Users during the Term of the Agreement, provided that Basic Contact Information (once downloaded to Customer’s system) shall additionally be accessible to non-User employees acting in non-sales functions, such as implementation and risk management staff.

5.5 Registration data and other information about Customer is subject to the Company Privacy Policy found on Company’s home page at www.etailinsights.com/privacy

Choice of Law; Disputes

6.1 These Terms of Use shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the choice of law provisions thereof. Any disputes arising out of these Terms of Use that cannot be resolved by the parties will be brought in state or federal court, as the case may be, located in Raleigh, North Carolina.

6.2 Customer will pay all costs and expenses, including reasonable attorneys’ fees, that Company incurs in any action to enforce these Terms of Use against Customer or any of Customer’s Users. Customer shall be liable to Company for any act or omission by any of its Users, which if performed or not performed, as the case may be, by Customer would constitute a breach of or default under these Terms of Use.

Termination

7.1 Immediately upon any breach of these Terms of Use by Customer, Company may suspend or permanently terminate all Access to the Site, Services or Information without notice, whereupon the Order Form, and all Customer’s rights in connection therewith, and these Terms of Use to the extent pertaining to such Order Form immediately shall terminate. In Company’s sole and exclusive discretion, Company may provide Customer an opportunity to cure any such breach to Company’s satisfaction.

7.2 The provisions set forth in Sections 1.2, 2, 3, 4, 5, 6, 7, 8, 9 and 10.1 will survive any expiration or termination of these Terms of Use.

Limitation of Liability

8.1 IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY WITH RESPECT TO ANY COMPANY PROPERTY, THESE TERMS OF USE (INCLUSIVE OF THE DPA), OR THE ORDER FORM EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO COMPANY PURSUANT TO SUCH ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ASSERTION OF THE APPLICABLE CLAIM.

8.2 IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, BUSINESS OR LOSS OF DATA), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR OTHER THEORY) ARISING OUT OF OR PERTAINING TO THIS AGREEMENT OR THE SITE, SERVICES OR INFORMATION, INCLUDING FOR DAMAGE RELATED TO ANY CRM INTEGRATION SERVICES (AS DEFINED IN THE ORDER FORM) OR DIRECT ACCESS TO CRM SYSTEMS VIA USERNAME/PASSWORD OR API ACCESS PROVIDED BY CUSTOMER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification

9.1 Customer agrees to indemnify, defend, and hold Company, and the directors, officers, employees, agents, representatives, suppliers, licensors, and service providers (collectively, “Representatives”) of Company, harmless from and against any loss, liability, claim, demand, action, damages, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”), to the extent arising out of: (1) any violation by Customer of these Terms of Use; (2) Customer’s or any of its User’s violation of any law, rule, or regulation or the rights of any third party; and (3) Customer Contributions. Company will have the right, but not the obligation, to participate through counsel of its choice in any defense or settlement by Customer of any Claims. Customer may not settle any Claims without the prior written consent of Company. Customer shall be liable to Company for any negligent or intentional acts of Users and any acts or omissions of Users, which, if performed or nor performed, as the case may be, by Customer, would constitute a breach of or default under this Agreement.

9.2 Company agrees to indemnify, defend and hold Customer harmless from and against any Claims arising out of third party claims arising out of or in connection with a breach by Company of any of its representations and warranties set forth in Section 5.3 above. Customer will have the right, but not the obligation, to participate through counsel of its choice in any defense or settlement by Company of any third party claims hereunder.

Customer Contributions

10.1 The Site and Services may allow Customer and/or Users to post, import, or upload content such as messages, images, data corrections (“user flagging”), text, or other material, and to otherwise provide information to Company orally or via e-mail or any other mode of delivery, including without limitation through message boards, forums, blogs or other interactive features (all the foregoing content and information, collectively, “Customer Contributions”). Customer is not required to provide Customer Contributions in order to operate the Site and Services, and may elect in its discretion not to provide Customer Contributions if it does not wish to do so, by either electing not to use certain features of the Site and Services or by instructing its Users not to use such features. With respect to Customer Contributions provided to Company through the Site or Services, while Customer retains any and all of Customer’s lawfully owned rights therein, Customer hereby grants Company a royalty-free, perpetual, irrevocable, worldwide, transferable, non-exclusive and fully-sublicensable right and license to view, store, reproduce, modify, adapt, publish, translate, create derivative works of, distribute, perform, display, and otherwise fully exploit Customer Contributions (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed, and to exercise the same rights with respect to such works. Customer also permits any individual or entity visiting the Site to access, store, distribute, perform, reproduce and prepare derivative works of Customer Contributions. No compensation or other consideration will be paid or otherwise provided to Customer or to any other person or entity with respect to Customer Contributions.

10.2 Company (but not Customer) may alter, edit or remove Customer Contributions at any time in its sole discretion. Customer is solely responsible at Customer’s own cost and expense to create backup copies of Customer Contributions. Customer agree that Customer’s and its Users’ use of the Site, Services, and Information are at its and their own risk.

10.3 Customer agrees that in no event shall Company be under any obligation of confidentiality or restricted use, express or implied, with respect to Customer Contributions. Customer represents and warrants that (i) Customer owns or otherwise controls, and shall own or otherwise control, all necessary rights to Customer Contributions, (ii) such Customer Contributions do not and shall not infringe, misappropriate, or otherwise violate the intellectual property rights of a third party, (iii) any such Customer Contribution (1) is and shall remain accurate; (2) does not and shall not contain libelous, defamatory or otherwise unlawful material; (3) does not and shall not violate anyone’s rights to publicity or privacy; (4) does not and will not cause injury to any person or entity; (5) does not and will not otherwise violate these Terms of Use.

10.4 As the provider of the Site, Company is only a forum and is not liable for any statements, representations, or omissions made through Customer Contributions or other third-party content on the Site. Any opinions, advice, purported facts, or recommendations expressed therein are those of the third party that makes them, and not those of Company; Company does not endorse any opinion, purported fact, recommendation or advice expressed therein. Likewise, it is Customer’s responsibility to exercise due care and caution (for Customer privacy, safety, and identity, among other concerns) when posting Customer Contributions or in connection with any Access.

Miscellaneous

11.1 All prior agreements or understandings, both oral and written, between the parties relating to the subject matter hereof or of the Order Form are expressly cancelled and superseded by these Terms of Use and the Order Form. Any amendments of or waivers relating to these Terms of Use or any Order Form must be in writing signed by both parties.

11.2 These Terms of Use bind and inure to the benefit of the parties and their successors and permitted assigns, except that neither party may assign these Terms of Use without the prior written consent of the other party; provided, however, that Company may assign these Terms of Use and the Order Form without Customer’s consent to an affiliate or in connection with a merger or consolidation involving Company (so long as the assignment is to the newly merged or consolidated entity) or the sale of all or substantially all of Company’s assets (so long as the assignment is to the acquirer of such assets) relating to the subject matter hereof.

11.3 Headings are used for convenience only and are not to be used for meaning or intent.

11.4 Company’s failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision or any other right of Company herein or other provision hereof.

11.5 If any provision of these Terms of Use shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable herefrom and shall not affect the validity and enforceability of any remaining provisions.

11.6 Customer agrees that no joint venture, partnership, employment or agency relationship exists or will be established between Customer and Company as a result of these Terms of Use and/or Company Property or any use thereof.

11.7 If the Company’s performance of these Terms of Use or any obligations hereunder is prevented or interfered with by reason of fire or other casualty or accident, strikes or labor disputes, war or other violence, any law, proclamation, regulation, or requirement of any government agency, act of weather, or any other act or condition beyond the reasonable control of Company, the Company upon giving prompt notice to the Customer shall be excused from such performance during such occurrence.

11.8 Customer agrees to provide its logo and testimonial to Company in Customer’s sole discretion. Company may choose to use Customer logo and testimonials for marketing purposes. Company reserves the right not to use logo or testimonial in Company’s sole discretion, and exercising this right does not place Company in breach of these Terms of Use.