This Master Product Suite Agreement ("Agreement") between Client and Parent Day Out Inc., either directly or through its Subsidiaries or Affiliates ("Parent Day Out"), is entered into and effective upon the date Client accepts a Schedule referencing this Agreement (the "Effective Date"). "Client" is the legal entity or individual who accepts the Schedule. Parent Day Out and Client may be referred to each individually as a "Party" and collectively as the "Parties." A "Schedule" is any document, which is accepted by an authorized representative of each Party, that sets forth the Product Suite provided to Client, terms applicable to the specific Product Suite, and fees.
In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
PARENT DAY OUT PRODUCT SUITE. Parent Day Out will provide Client with the data, applications, services, and any other activity performed by Parent Day Out pursuant to Parent Day Out‘s Schedules and/or Order Forms (collectively, the "Product Suite"). At any time during the term of this Agreement, Parent Day Out and Client may enter into one or more of the following Schedules or Order Forms incorporating the specific Product Suite provided to Client and governed by this Agreement. Subsequently, the Parties may enter into Statements of Work under a specific Schedule for transactions related to that Schedule.
AFFILIATES AND SUBSIDIARIES. Client‘s Affiliates may also purchase or license Product Suite under the same terms and conditions of this Agreement. Each Affiliate shall enter into a separate Schedule or Order Form and clearly indicate that the Schedule or Order Form is governed by this Agreement. "Affiliates" means any entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client. "Ownership" means at least fifty-one percent (51%) of the equity of the applicable entity. "Control" means the right to exercise the voting rights associated with at least fifty-one percent (51%) of the voting equity of the applicable entity. Client shall remain fully liable for all Schedules, Order Forms, and Statements of Work executed pursuant to this Agreement. Affiliate will remain fully liable for each Schedule or Order Form it enters into.
If an Affiliate enters into its own Schedule or Order Form, then Party, Parties, and Client will also include the Affiliate as to the Product Suite provided to such Affiliate. "Subsidiaries" means entities affiliate with Parent Day Out as may be identified by Parent Day Out from time to time.
TERMINATION. This Agreement and any Schedule may be terminated immediately where:
Either Party becomes subject to any involuntary receivership, insolvency, bankruptcy, moratorium or similar proceeding;
At Parent Day Out‘s sole discretion, Client assigns, or attempts to assign, this Agreement in breach of the Assignment section of this Agreement;
At Parent Day Out‘s sole discretion, Client or any of its Affiliates have failed to pay Fees (defined below) or report usage (as determined in a Schedule);
At Parent Day Out‘s sole discretion, Client or any of its Affiliates has breached Section 11 of this Agreement;
At Parent Day Out‘s sole discretion, 50% or more of the assets, equity securities, or voting interests of Client are sold, assigned, or otherwise transferred in a single transaction or a series of related transactions to any of the Restricted Entities (defined below);
At Parent Day Out‘s sole discretion, Client or any of its Affiliates has materially breached any term or condition of this Agreement, Schedule, or Statement of Work on three (3) or more occasions, even if previous breaches were cured in accordance with the provisions of this Section.
EFFECT OF TERMINATION.
Termination of the Agreement will terminate all Schedules and Statements of Work hereunder. Termination of a Schedule or Statement of Work will not automatically terminate this Agreement.
Upon termination or expiration of this Agreement or any Schedule, all fees and royalties, including any and all minimum fees, ("Fees") for the Product Suite will be due and payable immediately. Termination of this Agreement for any reason will not terminate, diminish, or otherwise affect Client‘s obligation to pay all applicable Fees accrued under a Schedule.
Upon termination or expiration of this Agreement or any Schedule, Client shall immediately cease any and all use of the Product Suite. Within thirty (30) days after the expiration or termination of this Agreement or applicable Schedule, Client shall certify in writing that Parent Day Out‘s Confidential Information and Product Suite have been completely, securely, and permanently destroyed, unless legally prohibited.
FEES AND PAYMENT.
Fees set forth in each applicable Schedule must be paid in full by Client within thirty (30) days following the date of Parent Day Out‘s invoice. Fees not paid within thirty (30) days will accrue interest at the highest rate allowed by applicable law. In the event Client fails to make timely payments, Parent Day Out, in its sole discretion, may suspend Client‘s access to the Product Suite and/or accelerate the payment terms to require the amount of all remaining Fees due immediately.
Where Client utilizes a third-party to manage its vendors including but not limited to payment processing providers, Client shall pay the cost for Parent Day Out‘s subscription fee to such third-party.
Definition of Confidential Information. "Confidential Information" means all nonpublic, confidential, or proprietary information disclosed by a Party or its Affiliates (the "Disclosing Party") to the other Party (the "Receiving Party"), whether orally or in writing or via electronic means, that is marked as "confidential" or that should be reasonably understood to be confidential. Confidential Information includes, without limitation, the Product Suite, financial statements, business and marketing plans, customer/client transactions customer/client lists, pending or threatened litigation, prospective contractual relations, collection, tabulation and analysis of data, proprietary information, computer programming methods, source code, object code, designs, specifications, plans, drawings, programs, databases, intellectual property, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and work in progress. The terms of this Agreement will also be deemed Confidential Information. Confidential Information does not include information that: (i) is publicly available as of the Effective Date or becomes publicly available thereafter through no fault of the Receiving Party provided, however, that the Product Suite will remain Confidential Information notwithstanding any portion of the Product Suite being sourced from the public domain; (ii) the Receiving Party rightfully possessed the information before it was received from the Disclosing Party; or (iii) is subsequently furnished to the Receiving Party by a third-party without restrictions on disclosure. Notwithstanding these provisions, Product Suite is always Parent Day Out Confidential Information.
Use of Confidential Information. Each Party retains all ownership rights in and to its Confidential Information. The Receiving Party must use the Disclosing Party‘s Confidential Information only to perform its obligations under this Agreement, and for no other purpose. The Receiving Party must keep confidential the Disclosing Party‘s Confidential Information using the same degree of care it uses to keep confidential its own Confidential Information, but in no event less than reasonable care. The Receiving Party further agrees not to disclose or permit any other person or entity access to the Disclosing Party‘s Confidential Information, except such disclosure or access of the Disclosing Party‘s Confidential Information will be permitted to a Representative of the Recipient that requires access, with any such access limited only to the extent necessary in order to perform his or her employment or services as they relate to the Receiving Party‘s performance of its obligations under this Agreement. The Receiving Party must ensure that such Representatives sign confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement. The Receiving Party must immediately notify the Disclosing Party in writing of all circumstances which the Receiving Party becomes aware of surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement. Subject to the limitations set forth in this Agreement, the Receiving Party is fully responsible and liable for any breach of this Section by any of its Representatives. Permitted uses pursuant to this Section are subject to all additional restrictions in the Agreement, Schedules, and Statements of Work.
Required Disclosures; Notification. If the Receiving Party is compelled by law, governmental regulation, court order, or other legal process to disclose any Confidential Information of the Disclosing Party, it may do so if: (i) it provides the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted); and (ii) it provides the Disclosing Party with reasonable assistance, at the Disclosing Party‘s reasonable expense, if the Disclosing Party determines in its sole discretion to contest the disclosure.
Return of Confidential Information. Upon the expiration or termination of this Agreement or upon request of the Disclosing Party during the term of this Agreement, the Receiving Party shall return or irretrievably destroy all Confidential Information of the Disclosing Party then in its possession or control. In the case of destruction, the Receiving Party must certify such destruction to the Disclosing Party within thirty (30) days following the expiration or termination of this Agreement or the Disclosing Party‘s request
CONDITIONS OF USE.
Except as expressly set forth in a Schedule, Client shall: (a) strictly comply with this Agreement, all applicable laws, and industry standards; (b) get and maintain all necessary permissions and valid consents required to lawfully transfer data to Parent Day Out and to enable such data to be lawfully collected, processed, and shared by Parent Day Out for the purposes of providing the Product Suite or as otherwise directed by Client; (c) be responsible for the accuracy, quality, and legality of any data and information provided to Parent Day Out; (d) house the Product Suite on the internet behind firewalls and prevent unauthorized usage or copying of the Product Suite; (e) protect the integrity of the Product Suite, control access to the Product Suite, and reasonably ensure that the amount of usage of the Product Suite is accurately recorded and at a minimum, retain audit logs and other industry standard measures; and (f) comply any applicable wireless suppression lists, the Federal Trade Commission‘s Do-Not-Call lists, and other opt-out lists before performing any direct marketing.
Except as expressly set forth in a Schedule, Client shall not: (i) resell or redistribute the Product Suite on a stand-alone basis or otherwise use the Product Suite in any service or product not specifically authorized in this Agreement or Schedule; (ii) disassemble, decompile, reverse engineer, modify, or otherwise alter the Product Suite or any part thereof; (iii) access any of the Product Suite not intended for Client‘s own use; (iv) log on to a server or an account that you are not authorized to access; (v) probe, scan, or test the vulnerability of a system or network; (vi) attempt to breach security or authentication measures without proper authorization; (vii) interfere with services to any user, host, or network, including, but not limited to, submitting a virus to any Parent Day Out website, overloading, flooding, spamming, mailbombing, or crashing; (viii) use or attempt to sue any engine, software, tool, agent, or other device or mechanism (including without limitation, browsers, spiders, robots, avatars, or intelligent agents) to navigate or search an Parent Day Out website other than the search engine and search agents available from Parent Day Out on one of Parent Day Out‘s websites and other than generally available third-party web browsers (e.g. Netscape Navigator, Microsoft Explorer); (ix) use the Product Suite to store or transmit data that infringe a third party‘s privacy right or intellectual property right; (x) use the Product Suite in connection with any mobile application (for example, for iOS and Android); (xi) name or refer to Parent Day Out or Client‘s use of the Product Suite in any of Client‘s advertisements or promotional or marketing materials; (xii) use the Product Suite to create, send, or display pornography, sexually explicit content, or campaigns promoting or supporting terrorism or violent extremism; (xiii) use data and information derived from the Product Suite to help determine an individual‘s eligibility for an extension of credit, insurance, or health care; (xiv) use data and information derived from the Product Suite to create or provide a Consumer Report as defined in 15 U.S. Code § 1681a; (xv) use data and information derived from the Product Suite to evaluate an individual for employment or promotions, reassignment, or retention as an employee; (xvi) use purchased, rented, or third-party lists of email addresses in connection with the Product Suite; (xvii) use or allow third parties to use the Licensed Data for the purpose of compiling, enhancing, verifying, supplementing, adding to or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to or performed for a third party to include digital display, advertising, or onboarding Licensed Data to any data management platform or other platform or exchange; (xvii) use data and information derived from the Product Suite to help determine an individual‘s eligibility for a license or other benefit granted by a governmental authority; (xviii) co-brand or otherwise provide the Product Suite on behalf of any third party; or (xix) use data derived from the Product Suite for the purpose of soliciting survivors of deceased persons. All licenses granted to Client pursuant to this Agreement or any applicable Schedule are expressly conditioned upon Client‘s (and all applicable third parties) compliance with this Section.
Client acknowledges that the Product Suite may contain email addresses. Client further acknowledges and agrees that, due to Client‘s products or services being advertised in the email, that Client is the "Sender‘ under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act") and is responsible for ensuring that previous opt-outs are honored in any further email marketing campaign by or on behalf of Client. Client waives any claim against Parent Day Out arising out of or related to Parent Day Out‘s transmission of an electronic mail message on behalf of Client to any individual(s) that previously opted-out of receiving such emails from Client. Client agrees that it shall not: (i) send or deliver, directly or indirectly, more than: (a) one (1) commercial electronic mail message (as defined in the CAN-SPAM Act), in the aggregate, to any single email address in any seven (7) calendar day period; and (b) three (3) commercial electronic mail messages, in the aggregate, to any single email address in any calendar month; (ii) use, or permit any email address to be used, in the transmission of any electronic mail message in which the "Sender" (as defined in the CAN-SPAM Act) is any person or entity other than the Client or, if permitted by the applicable Schedule, Client‘s permitted Affiliates; or (iii) use email addresses in a manner that otherwise violates any applicable laws. If email addresses are appended for Client, Client represents and warrants that all individual records provided by Client represent individuals with whom Client has an existing business relationship prior to delivery of such records to Parent Day Out. Client shall hold Parent Day Out harmless from any loss, liability, claim, or cause of action arising out of or related to: (a) Client‘s inappropriate use of email addresses; and (b) Client‘s failure to provide an up-to-date opt-out database prior to Parent Day Out‘s transmittal of commercial electronic mail messages on Client‘s behalf. It is Client‘s sole responsibility to determine the applicability of any such laws, rules, and regulations regarding email deployment.
Client acknowledges that the Product Suite may include wireless telephone numbers. Client agrees and acknowledges that: (i) Parent Day Out has not acquired consent in any form from the owners of the wireless telephone numbers to be contacted by Client in any manner; (ii) it is Client‘s sole responsibility to ensure that any of the wireless telephone numbers included in data derived from the Product Suite is compliant with all applicable laws, rules, and regulations; (iii) Client shall only use the data derived from the Product Suite in strict compliance with all federal, state, and local laws, rules, regulations, and ordinances, including but not limited to those concerning telephone solicitation, privacy, and direct marketing; (iv) it is Client‘s sole responsibility to determine the applicability of all laws, rules, regulations, and ordinances to the data derived from the Product Suite; and (v) Client shall hold Parent Day Out harmless from any loss, liability, claim, or cause of action arising out of or related to Client‘s inappropriate use of wireless telephone numbers.
If Client utilizes, and Parent Day Out consents to the use of, the services of a third-party processor or data storage provider ("Third Party") to process or store any Product Suite, Client shall ensure that (i) such Third Party adheres to the prevailing industry standards with respect to data security; (ii) usage of the Product Suite by a Third Party is limited to storing the Product Suite on behalf of Client; (iii) the Product Suite are not stored internationally; (iv) such Third Party signs Parent Day Out‘s standard Third Party agreement; and (v) Client is fully liable for any Third Party‘s access to the Product Suite.
Client will not use on behalf of or otherwise make any portions of the Product Suite available to the Restricted Entities (defined below) without Parent Day Out‘s prior written approval.
DATA SECURITY AND PRIVACY.
Each Party shall maintain and ensure all third parties maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the other Party‘s Confidential Information. Those safeguards include measures to protect Confidential Information from loss, misuse, unauthorized disclosure, unauthorized access, alteration, and destruction. Client shall maintain and enforce those safeguards to prevent unauthorized or fraudulent use or access of the Product Suite.
Parent Day Out and Client may enter into a data processing addendum ("DPA"), which will be incorporated into this Agreement by reference and apply to Personal Data as defined in the DPA. If any Personal Data is transferred from the European Union, the United Kingdom, or Switzerland by Client to Parent Day Out, the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks and/or the Standard Contractual Clauses will apply. For the purposes of this Agreement, Client and its Affiliates are the data exporters.
Each party commits to report any Data Security Breach to the other party within twenty-four (24) hours of discovery of the Data Security Breach. "Data Security Breach" means any unauthorized access, use, disclosure, modification, or destruction of the other Party‘s Confidential Information. In the event of a Data Security Breach, each Party will use commercially reasonable efforts to prevent the recurrence of a similar Data Security Breach.