These Dash Network LLC (“Dash”) Master Terms and Conditions (“Terms”) apply to all orders for Dash Network reports, research, services, events, digital media, and other offerings (“Offerings”) referencing these Terms (“Orders”).
By placing an Order with Dash, the “Client” listed in the Order (“Client”) agrees that the Order is placed subject to these Terms.
These Terms, together with each Order placed by a Client, together form a legally binding agreement between Dash and that Client (“Agreement”). PLEASE CAREFULLY READ THE ENTIRE AGREEMENT. The Agreement governs Client’s rights with respect to each Offering. IF CLIENT DOES NOT AGREE TO THESE TERMS OR THE AGREEMENT, or CLIENT DOES not meet ANY OF the qualifications included in these terms or THE AGREEMENT, DASH IS NOT WILLING TO ENTER INTO THE AGREEMENT WITH CLIENT OR TO PROVIDE CLIENT WITH ANY OFFERINGS.
The Agreement is effective as of the date a Client first enters into an Order with Dash or is first provided with access to any Offerings by Dash (“Effective Date”).
1. Definitions. All capitalized terms used in the Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in the Agreement will have their plain English meaning as commonly interpreted in the United States.
2. Orders. Client may place Orders for Offerings by telephone, email, or in written form. Each Order is non-cancellable once placed. All Orders are subject to acceptance by Dash and no Order is valid until accepted by Dash. Upon acceptance by Dash each Order will be incorporated into and form a part of the Agreement. Client’s rights with respect to each Offering will be as set forth in the Agreement, including the Order applicable to that Offering. Client receives no rights with respect to any Offering except as expressly stated in the Agreement. In the event of a conflict or inconsistency between any Order and these Terms, the Order shall control over the Terms only with respect to the Offering(s) stated in that Order, while these Terms shall control in all other respects. Within these Terms, the terms of any Exhibit relating to an Offering shall control only with respect to that Offering, while the other terms and conditions of these Terms shall control in all other respects.
3. Term. The Agreement will begin on the Effective Date and, unless terminated as set forth herein, will continue until 1-year following the expiration or termination of the last Order under the Agreement.
4. Offering-Specific Terms. The following terms will apply depending upon the Offerings included in each Client Order:
4.1 Syndicated Research Reports. The Syndicated Research Terms Exhibit attached hereto will apply to all market research or business intelligence reports Offerings (“Reports”), including all data, information, copy, designs, art, and other content (“Content”) included in each Report.
4.2 Custom Research Services. The Custom Research Exhibit attached hereto will apply to all custom research Offerings (“Custom Research”), including all Content included in any Custom Research.
4.3 Digital Offerings. The Digital Offerings Exhibit attached hereto will apply to the creation, production, hosting, or provision of any Advertising Services, Webinars or Virtual Events, Blogs, or Lists (each as defined in the Digital Offerings Exhibit and collectively, “Digital Offerings”), including all Content included in or with each Digital Offering.
4.4 Live Events. The Live Event Exhibit attached hereto will apply to all live events Offerings (“Events”).
4.5 Additional Services. As may be set forth in any Order under the Agreement or upon prior written agreement Dash may provide Client with additional advisory, support, consulting, or other services or service packages relating to any Offerings. All such additional services will be charged to (and payable by) Client at the applicable Fees or rates set forth in the Order or other written agreement applicable to those services or, if not set forth in the applicable Order or other written agreement, all such services will be performed at Dash’s then-current rates for such services.
5. Fees, Expenses, and Taxes. All fees payable by Client under the Agreement (“Fees”) are as set forth in each Order. Client will also reimburse Dash for all reasonable, documented, and necessary expenses incurred by Dash in the performance under the applicable Order (“Expenses”). Unless otherwise indicated in an Order, all Fees and Expenses with respect to each Offering are due and payable by Client as indicated in the Exhibit applicable to that Offering. Client agrees to pay the Fees and Expenses as and when due in U.S. dollars. If not specified in an Order or Exhibit, Fees and Expenses are due and payable by Client as specified in each invoice by Dash. Client may not offset any amounts due to Dash hereunder against amounts due to Client. All Fees and Expenses are non-refundable once paid to Dash. Any Fees and Expenses that are not paid as of the due date will accrue interest at 1.5% per month (or the highest amount allowed by law) until paid. Client shall be liable to Dash for attorneys’ fees and all other reasonable costs associated with collecting any Fees or Expenses owed under the Agreement. The Fees and Expenses do not include any taxes, levies, duties or similar governmental charges or assessments of any nature (“Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes on Dash’s net income. If Dash has the legal obligation to pay or collect Taxes for which Client is responsible under the Agreement, Dash will invoice Client and Client will pay that amount unless Client provides Dash a valid tax exemption certificate from the appropriate taxing authority.
6. Termination.
6.1 Termination. The Agreement may be terminated by either party, effective on written notice to the other party: (a) if the other party materially breaches the Agreement and such breach, (i) is incapable of cure, or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or (b) without cause if no Orders are currently in effect.
6.2 Effect of Termination. Termination or expiration of the Agreement will automatically terminate any Orders under the Agreement, but will not relieve either party of any rights or obligations accruing prior to such termination or expiration. Upon termination or expiration of the Agreement: (1) Client will end all access to and utilization of, and immediately and permanently delete or destroy, all Reports (including Content therein) and other Confidential Information in Client’s possession or control, including all copies thereof, and all rights and licenses granted to Client with respect to the foregoing will immediately cease; (2) if such termination is by Dash under Section 6.1(a), Client will cease using any and all Custom Research and Digital Offerings provided under the Agreement; (3) Client will be removed from the guest list for any Event and may not attend such Event; (4) Dash may cease performing all services being provided under the Agreement (including Custom Research and Advertising Services); and (5) any Fees and Expenses owed to Dash under the Agreement before such termination or expiration will be immediately due and payable (including, at minimum, the Fees due under the Agreement prorated based on services performed by Dash prior to termination or expiration and any Fees or Expenses attributable to non-cancellable commitments entered into by Dash prior to such termination or expiration). Upon request, each party will certify in writing to its compliance with this Section. The following Sections will survive termination of the Agreement for any reason: 1, 5, 6.2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, and any terms of an Exhibit or Order that by their nature extend beyond the expiration or termination of the Agreement, including all restrictions pertaining to any ongoing access or use of any Offering.
7. Ownership.
7.1 Dash Property. All software, hardware, technology, methodologies, methods, techniques, concepts, systems, procedures, know-how, or inventions, all Reports, Custom Research, and Digital Offerings (including all Content therein), all Dash Marks (as defined in the Live Event Exhibit), any other ideas, conceptions, inventions, reductions to practice, discoveries or developments made by or on behalf of Dash, any modification, enhancement, improvement, or derivative work to or of any of the foregoing, and all intellectual property rights therein and thereto (collectively, “Dash Property”) are and will remain the exclusive property of Dash. Except as expressly stated in the Agreement, Dash grants Client no rights or licenses in or to the Dash Property or under any other intellectual property or rights of Dash, whether by implication, estoppel, or otherwise. Client agrees to, and hereby does, assign to Dash all right, title and interest that Client may acquire in or to any Dash Property. At Dash’s request and expense, Client will execute and deliver such instruments and take such other action as may be reasonably requested by Dash to perfect or protect Dash’s rights in the Dash Property.
7.2 Client Property. Any Marks (as defined in the Live Event Terms), Client Creative (as defined in the Digital Offering Exhibit), and other intellectual property rights of Client that were acquired, developed or created by, or licensed to, Client prior to the Effective Date or independent from the Agreement (“Client Property”) are and will remain the exclusive property of Client. Client is solely responsible for all Client Property that Client may provide to Dash. In addition to any other rights granted to Dash under the Agreement, Client grants to Dash all rights and licenses in and to the Client Property as may be necessary for Dash to complete its obligations under the Agreement. Client represents and warrants to Dash that neither the Client Property nor Dash’s use of the Client Property as permitted herein will: (a) violate the Agreement or any applicable laws, rules, or regulations; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute a violation, infringement or misappropriation of the intellectual property rights or other rights of any third party; (d) be illegal in any way or advocate illegal activity; (e) be false, misleading, or inaccurate; or (f) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. Dash is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of the Client Property. Client represents and warrants to Dash that it has and will maintain all rights, permissions, and consents necessary to grant Dash each of the foregoing rights set forth in this Section.
8. Confidentiality.
8.1 Confidential Information. For purposes of the Agreement, “Confidential Information” means any data or information regarding the business, finances, offerings or technology of either party provided to or otherwise obtained by the other party, including any and all technical, marketing, financial, pricing, employee, and planning information, and any other data or information received or otherwise obtained under the Agreement that is marked as confidential or that a reasonable person should have known, under the circumstances, was confidential or proprietary.
8.2 Protection. Each party (the “Receiving Party”) may from time to time receive or otherwise obtain Confidential Information from the other party (the “Disclosing Party”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature, but in no event with less than reasonable care.
8.3 Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party becomes, generally available to the public; or (d) is independently developed by the Receiving Party without access to, use of, or reference to, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (ii) required by law or by the order of a court, or a similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9. Warranties. Each party represents, warrants, and covenants that: (1) such party has full power and authority to enter into the Agreement and to perform its obligations under the Agreement; (2) the Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; and (3) the Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound.
10. Disclaimer. DASH PROVIDES ALL OFFERINGS SOLELY FOR INFORMATIONAL PURPOSES AND DOES NOT WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR WILL MEET ANY REQUIREMENTS OF CLIENT. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ALL OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLIENT’S USE OF ANY OFFERING IS AT CLIENT’S OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, DASH DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS OR COVENANTS RELATING TO THE AGREEMENT AND ALL OFFERINGS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. DASH DOES NOT GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF ANY OFFERINGS. DASH WILL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS, OR DELAYS IN ANY OFFERINGS.
11. Limitation of Liability. IN NO EVENT WILL Dash BE LIABLE UNDER THE AGREEMENT OR IN CONNECTION WITH ANY OFFERING FOR ANY LOST PROFITS, REVENUES, TIME, OPPORTUNITY, GOODWILL, INFORMATION, OR DATA, COSTS TO PROCURE A SUBSTITUTE SERVICE, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF Dash has BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM CUMULATIVE LIABILITY OF Dash IN CONNECTION WITH THE agreement or any OFFERING will not EXCEED THE FEES actually PAID BY CLIENT TO Dash UNDER THE ORDER GIVING RISE TO such liability IN THE 3 MONTH period PROCEEDING THE DATE SUCH LIABILITY AROSE. CLIENT MAY NOT BRING ANY ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE Agreement or any OFFERING MORE THAN 1 YEAR AFTER SUCH ACTION HAS ACCRUED.
12. Certain Liabilities. Client shall, at its sole expense, indemnify, defend, and hold harmless Dash and its affiliates, subsidiaries, and licensors, and its and their respective employees, agents, directors, officers, and representatives from and against any and all judgements, losses, damages, liabilities, penalties, taxes, costs, and expenses (including attorneys’ fees and all expenses of litigation) (“Losses”) incurred in connection with any claim, action, demand, suit, or proceeding (collectively, “Claims”) brought against any of them insofar as such Claim arises out of or relates to: (1) the infringement, violation, or misappropriation of, or interference with, any intellectual property right, including any right of publicity or privacy, or any other right of any third party by Client or by the Client Property or Dash’s use of the Client Property as permitted under the Agreement; (2) Client’s website, products, services, or other offerings; or (3) Client’s gross negligence or willful misconduct. Dash will provide Client with written notice of any Claim. Client has the right to participate in the defense of any Claim at its own expense.
13. Dispute Resolution.
13.1 Arbitration. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to the Agreement or any Offering, including the formation, validity, binding effect, interpretation, performance, breach, or termination, of the Agreement and the arbitrability of the issues submitted to arbitration under the Agreement and all non-contractual claims relating to the Agreement or any Offering (each, a “Dispute”), in accordance with the procedures set forth in this Section 13. Except as otherwise provided in this Section 13, if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration by International Chamber of Commerce under its arbitration rules then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to the Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Dash, in its sole discretion, at a location determined by Dash in Denver, Colorado (USA). The arbitrator will apply the law set forth in Section 13.3 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend the Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator will require payment of the reasonable costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
13.2 Injunctive Relief. Notwithstanding Section 13.1, either party may commence a civil action to compel arbitration under the Agreement and/or to temporarily or preliminarily enjoin actual or threatened breaches of the Agreement pending arbitration. Client agrees that any unauthorized copying, publication, performance, distribution, modification, or other utilization of or access to any Offering or disclosure of Dash’s Confidential Information will cause Dash irreparable injury that cannot be adequately compensated for by means of monetary damages. Client therefore agrees that any breach of the Agreement by Client may be enforced by Dash by means of equitable relief (including injunction), without Dash being required to post a bond or make a showing of irreparable harm, in addition to any other rights and remedies that may be available to Dash under applicable law.
13.3 Choice of Law; Venue. The Agreement and all Disputes hereunder will be governed in all respects exclusively by the laws of the State of Colorado (USA), without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Subject to Section 13.1, each party will bring any action or proceeding arising from or relating to the Agreement exclusively in a state or federal court in Denver, Colorado (USA), and each party irrevocably submits to the personal jurisdiction and venue of such courts in any such action or proceeding brought in such courts by the other party.
14. Audit. Client will maintain the most recent 18 months of records with respect to Client’s access to and utilization of all Offerings by Client. During the term of the Agreement and for a 3-year period thereafter, Dash will have the right to audit and review relevant portions of those records and the manner of access to and utilization of any Offerings by Client, in each case to confirm that the restrictions in the Agreement have been observed. The costs of any such audit will be borne by Dash unless such audit reveals any breach of the Agreement by Client, in which case Client will reimburse Dash for its costs and expenses in conducting such audit.
15. Notice. All notices, reports, consents, authorizations, and approvals to be given by a party under the Agreement will be in writing and will either be via: (1) hand-delivery; (2) Federal Express (or a comparable overnight mail service); or (3) certified mail, return receipt requested, to the other party at its respective addresses or telephone/fax number set forth above. All notices will be effective upon receipt (or when delivery is refused) or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.
16. Force Majeure. Dash shall be liable or responsible to Client, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement to the extent such failure or delay is caused by or results from acts or circumstances beyond its reasonable control including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. Additional Terms. The Agreement consists of these Terms, including the Exhibits referenced herein, and the terms of each Order hereunder, each of which is incorporated into and made a part of the Agreement. The Agreement is the complete and exclusive understanding and agreement between the parties regarding the subject matter covered by the Agreement, including all Offerings, and supersedes any oral or written proposal, agreement, or other communication between the parties.The parties acknowledge and agree that the pre-printed provisions on the reverse side of any purchase order, quotation, acknowledgment, or invoice shall be deemed deleted and of no effect whatsoever. English (as the meaning of the words and phrases thereof are commonly interpreted in the United States) shall be the language used to interpret this Agreement and in all communications between the parties under the Agreement, including all notices. The Agreement, including any Order, may be executed electronically or in one or more counterparts, duplicate originals, or facsimile versions, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Except as set forth herein, the Agreement may only be amended, changed, or modified in a written record sufficiently acknowledged and signed by an authorized representative of each party. All waivers under the Agreement must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Upon request by Dash, an officer or director of Client will certify in writing to Client’s compliance with any of the terms of the Agreement. Except as expressly set forth herein, there are no third-party beneficiaries to the Agreement. Client may not assign or transfer the Agreement or any of Client’s rights or obligations under the Agreement to any third party (by operation of law or otherwise) without Dash’s prior written consent. Any assignment or transfer in violation of the foregoing will be void. Dash may assign or transfer the Agreement for any reason. The Agreement will be binding upon the permitted successors and assigns of each party. In interpreting and construing the Agreement, “including,” “include,” “includes” and variations thereof will be construed as if followed by the phrase “without limitation.” If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties will replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by the Agreement. Dash may provide the Offerings through its own employees or through contractors, as determined solely by Dash in its reasonable discretion. Neither party will make any warranties or representations on behalf of, or otherwise bind, the other party.
Syndicated Research Exhibit
The following terms of this Exhibit apply to all Orders for Reports:
1. Fees and Payment. All Fees are as set forth on each Order and are due and payable by Client within 30 days following the date of the invoice. Dash will have no obligation to provide any further Reports or perform any further services if Client has failed to pay any Fees stated in any invoice under the Agreement when due.
2. Access
2.1 Basic Access. If an Order specifies that Client has purchased “Basic” access to a Report, then during the term of the applicable Order, and conditioned on compliance by Client with the terms of the Agreement, Dash will provide Client with the limited, personal, non-transferable, non-sublicensable, and non-exclusive right to provide access to the Report to the number of Client’s current employees stated on that Order.
2.2 Enterprise Access. If an Order specifies that Client has purchased “Enterprise” access to a Report, then during the term of the applicable Order, and conditioned on compliance by Client with the terms of the Agreement, Dash will provide Client with the limited, personal, non-transferable, non-sublicensable, and non-exclusive right to provide access to the Report to all current employees of Client.
2.3 Purpose. All access to any Report (and any Content therein) will be solely for Client’s own internal business purposes in accordance with the terms and conditions of the Agreement. Client will have no right to modify any Report but may make excerpts of each Report and may make copies of each Report or any such excerpts, provided however, that all such excerpts and copies are used solely in accordance with the terms and conditions of the Agreement. Client’s subsidiaries and affiliates may not have access to the Reports without entering into a separate agreement or order with Dash. Client may not access or use any Report, or any Content included in any Report, except as expressly permitted in this Section 2.
3. Restrictions on Access to Reports. Client will not, and will not allow any third party to: (1) modify, translate, reproduce, publicly display, or create derivative or collective works comprising any Reports or Content in any form or format, except for the copies and excerpts expressly permitted by Section 2 of this Exhibit; (2) combine or merge any Report or Content with any other data, information, or content not provided by Dash, provided that excerpts of Reports may be displayed with other data, information, or content of Client for Client’s own internal business purposes; (3) reverse engineer or otherwise attempt to derive the method of operation of the Dash Property, or the structure, organization, selection, coordination or arrangement underlying any Report or Content; (4) publish, transmit, distribute, disclose, sublicense, rent, lease, loan or otherwise provide any Report or Content to any third party; (5) alter, obscure or remove any copyright, trademark, or other notice provided on or in connection with any Report; or (6) otherwise use or access the Report except as explicitly permitted by the Agreement. If Client would like to publish, cite to, or distribute any Report or Content, Client must contact Dash and obtain express permission for such action from Dash.
4. Limited Warranty. Dash will use commercially reasonable efforts to deliver each Report and perform any services relating to any Report or Content as agreed to by Dash under the applicable Order. As Client’s sole remedy, and Dash’s sole obligation, for any failure by Dash to comply with the foregoing sentence, Dash will, as applicable, provide a new copy of any Report or re-perform any services affected by such failure.
Custom Research and Content Exhibit
The following terms of this Exhibit apply to all Orders for Custom Research:
1. Fees and Payment. Client will pay the Fees set forth in each Order when due. If an Order does not state any Fees, Client agrees to pay Dash for Custom Research under that Order on a time and materials basis at Dash’s then-current rates. Unless otherwise stated in an applicable Order, Dash will invoice Client for all Fees and Expenses incurred during each month upon the completion of that month. Client will pay all such invoiced amounts within 30 days of the date of invoice.
2. Change Orders. Any changes to any Custom Research set forth in an Order must be documented by the parties in a written change order describing the changes (and any applicable changes to the Fees due for the changed Custom Research) agreed to by both parties. Unless otherwise agreed to by the parties in a written change order, or a separate Order or agreement, any services not set forth in an Order will be provided by Dash on a time and materials basis at Dash’s then-current rates.
3. License. Subject to payment of all applicable Fees when due, Dash grants to Client a limited, personal, non-transferable, non-sublicensable, and non-exclusivelicense to access and use the deliverables provided to Client by Dash in connection with any Custom Research (“Custom Research Deliverables”) solely for the purpose set forth in the applicable Order, or, if no purposes is specified, for its own internal business purposes in accordance with the terms of the Agreement.
4. Purpose. Unless otherwise set forth in the applicable Order, all access to any Custom Research Deliverable (and any Content therein) will be solely for Client’s own internal business purposes in accordance with the terms and conditions of the Agreement. Client will have no right to modify any Custom Research Deliverable but may make excerpts of each Custom Research Deliverable and may make copies of each Custom Research Deliverable or any such excerpts, provided however, that all such excerpts and copies are used solely in accordance with the terms and conditions of the Agreement. Client’s subsidiaries and affiliates may not have access to the Custom Research Deliverable s without entering into a separate agreement or order with Dash. Client may not access or use any Custom Research Deliverable, or any Content included in any Custom Research Deliverable, except as expressly permitted in this Section 4.
5. Restrictions. Unless otherwise stated in the applicable Order, Client agrees not to: (1) sublicense, lease, sell, rent, loan or otherwise transfer the Custom Research Deliverables or Dash Property to any third party; (2) publish, transmit, distribute, disclose, sublicense, rent, lease, loan or otherwise provide any Custom Research Deliverable to any third party; (3) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or method of operation of the Custom Research Deliverables or Dash Property; or (4) otherwise use or copy the Custom Research Deliverables or Dash Property except as expressly permitted in Section 3. Client may not provide its subsidiaries and affiliates access to the Custom Research Deliverables unless it enters into a separate agreement or order with Dash.
6. Warranties. Dash will use commercially reasonable efforts to perform all Custom Research. If Dash fails to comply with the previous sentence, Dash will, at its sole discretion and as Client’s sole remedy and Dash’s sole obligation for any such failure: (1) re-perform the Custom Research in a manner that resolves the alleged failure; or (2) refund any Fees paid by Client attributable to the Custom Research that are the subject of the failure.
Digital Offerings Exhibit
The following terms of this Exhibit apply to all Orders for Digital Offerings:
1. Fees and Payment. All Fees are as set forth on each Order and, unless otherwise set forth in the Order, are due and payable by Client within 30 days following the date of the invoice. Dash will have no obligation to provide any further Digital Offerings if Client has failed to pay any Fees stated in any Order under the Agreement when due.
2. Changes, Delivery & Hosting of Online Content. Any changes to, or cancellation of, any Digital Offering set forth in an Order must be documented in a written change order describing the changes (and any applicable changes to the Fees due for the changed Digital Offerings) agreed to by both parties. Any agreed upon change or cancellation will be effective 14 days after Dash’s approval thereof. Where specified in the Order, Dash will host each Digital Offering on its website for the period set forth in the Order. Dash does not warrant that the operation of its website or any other on-line service, whether provided by Dash or a third party, will be uninterrupted or error-free. Dash assumes no liability for any omission or delay in hosting any Digital Offering on its website.
3. campaign Promotion. Dash will provide advertising services (“Campaign Promotion Services”) as and to the extent set forth in each Order. Campaign Promotion Services may be in the form of a LinkedIn announcement, custom email, or digital Content published on the Dash website. Unless Client has paid a placement premium (or unless otherwise provided in the Order), positioning of advertising is in Dash’s sole discretion.
4. Advertising. Client must deliver all copy, art, video, designs, or other Content related to the applicable advertisement (“Client Creative”) to Dash at least 5 business days prior to launch of the applicable Advertising Services (the “Campaign Start Date”). Client may submit written requests for modification to any Client Creative, including Client Creative in use in an ongoing campaign, and Dash shall make a good faith effort to comply with the request, at Client’s cost and expense. Dash reserves the right in its sole discretion to designate the general and classified rates for any Advertising Services. Dash’s Advertising Services will not promote any subsidiary or affiliate of Client, nor any third party, unless otherwise agreed by the parties in writing. Client acknowledges that Dash utilizes third-party systems to provide the Advertising Services.
5. Webinar/Video Content. Dash will provide produce and host online webinars and/or custom videos (“Webinars”) as and to the extent set forth in each Order. Client must deliver to Dash all Content for the applicable Webinar (“Webinar Content”) at least 5 business days prior to the Webinar live event or recording date set forth in the Order or, if no live event or recording date is set forth in the Order, prior to the live event or recording date designated by Dash (in either case, the “Recording Date”). Dash shall not be liable for any errors or omissions that appear in any Webinar Content provided by Client. Because Dash will incur additional costs if Client is late in providing Webinar Content or if Client reschedules or cancels a Webinar, the parties agree that Client will pay the following fees as a reasonable estimate of the costs incurred by Dash:
5.1 Late Fees. Client agrees to pay Dash a $500 late fee if: (a) any Phase I asset (as outlined in the Dash webcast project timeline) is provided to Dash later than 3 weeks prior to the Recording Date; and/or (b) any Phase II asset (as outlined in the Dash webcast project timeline) is provided to Dash later than 3 business days prior to the Recording Date. Phase I assets include Client’s logo, the event title and overview, speaker bios and digital headshots. Phase II assets include the Final PowerPoint slide presentation in compliant format, polling questions, filler questions and feedback/survey questions.
5.2 Reschedule Fees. For any Webinar that Client reschedules within 15 business days of the Recording Date, Client will pay a rescheduling fee equal to the lesser of (a) $1,500 and (b) 75% of the Fee for the Webinar set forth in the Order.
5.3 Cancellation Fees. For any Webinar that Client cancels within 20 business days of the Recording Date, Client will pay Dash a cancellation fee equal to the lesser of (a) $5,000 and (b) 100% of the Fee for the Webinar set forth in the Order.
6. Lead Generation. If Client enters into an Order with Dash for the delivery of lead generation services (“Lead Generation Services”), the terms and conditions of this Section apply.
6.1 Lists. Dash will use commercially reasonable efforts to provide Client the minimum number of leads specified in the Order on the frequency of delivery specified on the Order. Client acknowledges and agrees that Dash owns and will continue to retain all right, title, and interest in and to any lead or registrant list that Dash creates as part of its Lead Generation Services (“List”). Subject to payment of all applicable Fees when due, Dash grants to Client a limited, personal, non-transferable, non-sublicensable, and non-exclusivelicense to access and use the Lists provided to Client by Dash under the Agreement solely for the purpose set forth in the applicable Order, or, if no purposes is specified, for Client’s own self-promotional purposes; provided that such permitted use shall include Client’s use of marketing companies or other agents to accomplish such purposes as long as those companies agree to use the List solely for the benefit of Client.
6.2 Restrictions. Unless otherwise stated in the applicable Order, Client agrees not to: (1) sublicense, lease, sell, rent, loan or otherwise transfer any List to any third party; (2) use any List for the benefit of any third party or make any List available to any third party for such party’s own use; (3) re-identify or attempt to re-identify any individual person or device anonymized or de-identified within the List; (4) use the Lists in any manner that would (a) violate this Agreement or any applicable laws, rules, or regulations, (b) be libellous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) be illegal in any way or advocate illegal activity; (d) be false, misleading, or inaccurate; or (e) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement; or (5) otherwise access, use, or copy the List except as expressly permitted in the Order.
6.3 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information. To the extent that Personal Data (as defined in the GDPR, “Personal Data”) contained in a List provided to Client under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”), each party agrees that it is a “controller” with respect to any Personal Data contained in such List and agrees to comply with all applicable provisions of the GDPR and any other applicable privacy laws, rules or regulations. Notwithstanding anything in this Agreement to the contrary, Client shall not use any List subject to the GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the GDPR, or Client has another lawful basis to process such information. From time to time, Dash may provide Client with a list of persons who have requested that their Personal Data be removed from Dash’s Lists. Client agrees to review any List in its possession or control and to permanently delete from any such list any records relating to such persons, unless Client has established an independent lawful basis to process such person’s Personal Data.
6.4 Security Incidents. If either party becomes aware of a Security Incident relating to the processing of Personal Data in connection with the Agreement, it shall (i) provide the other party with reasonable details of such Security Incident without undue delay, and (ii) act reasonably in co-operating with the other party in respect of any communications or notifications to be issued to any data subjects and/or supervisory authorities in respect of the Security Incident. If either party receives any communication from any supervisory authority relating to the processing of Personal Data in connection with the Agreement, it shall (i) provide the other party with reasonable details of such communication, and (ii) act reasonably in co-operating with the other party in respect of any response to the same. As used herein, “Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed.
6.5 Email Transmission. With respect to any e-mails that may be sent by or on behalf of Client in connection with any List, (the “Blasts”), Client agrees to fully comply with and fulfill its obligations under all applicable e-mail marketing, privacy and data protection laws and regulations of the U.S. and any other applicable country, including the U.S. CAN SPAM law and EU data protection legislation and regulation, concerning e-mail marketing, privacy or data security. Such compliance shall include with respect to any Blasts, that Client will maintain, or have maintained, its opt-out mechanism, as included in any Blasts, for at least 30 days after the date such Blast was initially transmitted; monitor and promptly respond to Blast recipient requests to be removed from e-mail distributions, consistent with all applicable privacy laws, regulations and policies; and provide Dash with notice of any opt-out request within 1 business day following receipt. To the extent that any Blasts will be sent by Dash to a Dash-provided list of recipients, Client shall provide its suppression list to enable Dash to ‘scrub’ against Dash’s list.
6.6 Suppression Liability. Client agrees to defend, indemnify, and hold harmless Dash, and its directors, officers, employees, and agents from and against all claims, losses, damages, liabilities, costs or expenses due to or arising out of Client’s failure to provide a complete and accurate suppression list to Dash.
Live Events Exhibit
The following terms of this Exhibit apply to all Orders for Live Events:
1. Sponsorship Benefits. Client is hereby entitled to attend and participate at the Event and shall be entitled to the rights and benefits provided in accordance with Client’s sponsorship package set forth in the Order.
2. Event Rules. Client agrees to abide by the Event terms, conditions, and rules, as may be updated from time to time, in addition to all other terms and conditions contained in the Agreement. Dash reserves the right to refuse entry to Client and/or its representatives at the Event and/or to withhold any information, communications, services, brochures, or any other benefits to be derived under the Agreement and the Event itself, in the event that (1) Client has not paid any portion of the Fees for the Event as and when due; (2) Client or its representatives are not following the Event terms, conditions, or rules or are otherwise acting unruly, disruptive, or offensive (as determined by Dash in its sole discretion); or (3) the registrant does not match the event’s target demographic profiles or competitors.
3. Payment. Unless otherwise provided in the applicable Order, Client will pay all Fees relating to the Event set forth in each Order as follows: (1) 50% upon Client’s receipt of the invoice; and (2) the remaining balance no less than 60 days prior to date of the Event set forth in the Order (“Event Date”). If the parties execute an Order less than 60 days prior to the Event Date, all Fees are due upon Client’s receipt of the invoice. Client agrees that the amount of its Fees to sponsor the Event constitutes Dash’s Confidential Information and Client will not discuss the details of its Fees with any third party.
4. License Grant.
4.1 License. Each party hereby grants the other party a non-exclusive, non-transferable, non-sublicensable right and license to use its Marks, in all formats and media, solely as necessary to market, advertise promote, organize and host each Event. “Mark” means any trademark, trade name, service mark, design, logo, domain name, or other indicator of the source or origin of any product or service.
4.2 Quality Control. Each party shall submit examples of all proposed uses of the other party’s Marks to the other party for written approval, provided that any failure of a party to object in writing to any proposed use within 3 days shall be deemed approval of such use. Each party shall use the other party’s Marks solely in accordance with the other party’s trademark usage guidelines and quality control standards provided by such other party, as the same may be updated from time to time. If either party is notified in writing by the other party that any use does not so comply, such party shall immediately remedy the use to the satisfaction of the other party or terminate such use. Neither party shall use, register, or attempt to register in any jurisdiction any Mark that is confusingly similar to or incorporates any of the other party’s Marks. All uses of a party’s Marks, and all goodwill associated therewith, shall inure solely to the benefit of such party, and each party shall retain all right, title, and interest in and to its Marks.
5. Changes and Cancellation.
5.1 By Client. Client shall immediately notify Dash in writing of any decision to cancel its participation in the Event. If Dash receives Client’s written notice of such cancellation more than 30 days prior to the Event Date, Client shall only be liable for payment to Dash of 50% of total Fees for the Event. If Dash receives Client’s written notice of such cancellation within 30 days of the Event Date, Client shall be liable for payment to Dash of all Fees for the Event.
5.2 By Dash. Dash shall have the right, in its sole and absolute discretion, to cancel or change the Event Date, itinerary, format, venue, speakers, meetings, and or bookings. In the event of cancellation of the Event, Dash will reimburse Client for all Fees for the Event paid by Client, unless Dash reschedules the Event to a date within a reasonable period of time (i.e., within 12 months) following the originally scheduled Event Date. In the event Dash reschedules the Event to a date within a reasonable period of time (i.e., within 12 months) following the original Event Date, any Fees for the Event paid by Client shall be converted to a non-refundable credit towards the rescheduled Event.