Prospector Data License Terms and Conditions
These Data License Terms and Conditions are entered into by and between you, whether as an individual or on behalf of any entity that you represent, and Agile Education Marketing, LLC (“Agile”, “we”, “our” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Terms”) set out our and your legal rights and obligations in relation to your use of our proprietary cloud based application known as Prospector (the “Application”) and the ordering and licensing of Data Files (as defined below) and all data incorporated therein via the Application.
THESE TERMS REQUIRE YOU TO RESOLVE DISPUTES WITH AGILE THROUGH FINAL AND BINDING ARBITRATION, EXCEPT AS OTHERWISE SET FORTH HEREIN. ANY ARBITRATION UNDER THESE TERMS MUST TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. THINK CAREFULLY ABOUT WHAT THIS MEANS FOR YOU.
By using the Application, ordering or accessing any Data File, or clicking accept or agree to these Terms when this option is made available to you, you accept and agree to be bound by these Terms and, if entering into these Terms on behalf of an entity, represent and warrant that you are duly authorized to bind such entity to these Terms. We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access and use of the Application and Data Files thereafter. Your continued use of the Application and ordering of Data Files following the posting of the revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
If you have any questions or complaints about our services, please contact us by writing to Agile Education Marketing, LLC, 700 17th Street, Suite 2250, Denver, Colorado 80202 or by email to prospector_support@agile-ed.com.
1. DATA FILE; DELIVERY.
By using the Application to submit a query for list specification within the Application, you are intending to purchase a license to the data requested in such query (such data, the “Data File”). After receiving your query, the Application will indicate the price of the Data File requested and, if you choose to proceed, generate the Data File and deliver it to you via the Application, subject to your payment of applicable fees for the Data File. This Data File will be available to you in your Application account for one calendar year following the date of your order for the Data File.
2. DATA LICENSE.
2.1. License.
Subject to and conditioned upon your payment of the applicable fees and compliance with these Terms, Agile hereby grants to you a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted herein) perpetual license to access and use the Application and download and use the Data File and the data contained therein (the “Data”), in each case solely in accordance with any policies, documentation or specifications provided to you by Agile and solely for your internal business purposes, including, but not limited to, marketing and promoting your goods and/or services, populating marketing and sales management systems, and training of your employees in the use of the Data File and Data.
2.2. License Restrictions.
You shall not, and shall not permit any other person or entity to, access or use the Application, Data File or Data except as expressly permitted under these Terms. Without limiting the foregoing, you shall not, and shall not permit any other person or entity to: (i) allow any unauthorized person to access or use the Application and the Data File; (ii) frame or otherwise republish or redistribute the Application and the Data File; (iii) alter, adapt or edit the Application and the Data File except as expressly permitted by the Documentation; (iv) use the Application and Data File in any way that causes, or may cause, damage to the Application and the Data File or impairment of the availability or accessibility of the Application, or any of the areas of, or services on, the Application; (v) copy, modify, or create derivative works or improvements of the Data File or Data; (vi) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer the Data File or Data to any person or entity; (vii) bypass or breach any security device or protection used for the Data File or Data; (viii) remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property rights notices from any Data File or Data; (ix) use the Data File or Data for the development, provision, or use of a competing service or product or any other purpose that is to Agile’s detriment or commercial disadvantage; or (x) use the Data File or Data to create, modify, and/or update lists, directories, or compilations of any kind in any medium, that will be sold, exchanged, transmitted, or provided, whether or not for value, to any person or entity not employed by you.
2.3. Notice and Corrective Action.
If you become aware of any actual or threatened activity prohibited by Section 2.2, you shall immediately (i) notify Agile of any such actual or threatened activity, and (ii) take all reasonable and lawful measures to stop the activity or threatened activity and to mitigate its effects to the extent within your control.
2.4. Termination.
In the event you breach any provision of these Terms, Agile has the right to terminate your license to use the Data File and Data. If Agile ceases to offer the Application, Agile may suspend your access to the Application or terminate these Terms. Agile will use commercially reasonable efforts to provide you with notice of any such breach, suspension or termination, as applicable. In addition, Agile reserves the right to refuse use or access of the Application to anyone, for any reason, and at any time it deems necessary, and to terminate your access to the Application (permanently or temporarily) at any time, without notice, for any reason whatsoever. Termination of these Terms will not affect either party’s accrued liabilities and rights as at the date of termination. The provisions of these Terms shall survive their termination to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate.
3. PAYMENT.
3.1. Prices; Payment Method.
The price for each Data File is based on the amount and types of Data that you request and will be provided to you prior to the completion of your Data File order. To place your order, you will be asked to provide your credit or debit card information. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
3.2. Taxes.
All fees and other amounts payable by you under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Agile’s net income.
4. DATA UPDATES.
We regularly review and update our databases. As part of our license of the Data File and Data to you pursuant to these Terms, we may notify you about certain updates to you after your initial order according to the following terms:
4.1. Within 60 days of your order.
You may access the Application, review saved Data Files and submit a request on the Application for an update to your Data File. If any updates exist, we will provide you with any additional, unique data meeting the criteria of your Data File (“Updated Data”) at no additional charge to you. Please note that Updated Data shall be limited to data that was not originally included in your Data File. We will not provide a new Data File, nor will we notify you of, or remove, Data that is outdated or has been deleted from our databases.
4.2. After 60 days but within one calendar year of your order.
You will have the opportunity to order the Updated Data only, according to our then-current rates, without having to incur the charge of ordering the entire Data File.
4.3. After one calendar year of your order.
You will be required to re-order your Data File at our then-current rates to obtain any Updated Data. The update eligibility cycle as described above will then start over on the newly-purchased Data File.
5. EMAIL LISTS.
Any messages sent by you or on your behalf to email addresses contained in the Data File shall strictly comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) and all other applicable laws.
6. SUPPORT; ACCURACY; ERRORS.
Agile agrees to provide commercially reasonable support via email during its normal business hours to assist you with your use of the Application and the ordering and use of Data Files. Agile collects its data from a variety of sources and cannot guarantee the accuracy of the Data as such a guarantee would require considerable additional expense. Additionally, Agile may include some seed names and email addresses in the Data to protect its proprietary information and confirm your compliance with these Terms. The seed data will not be included in the quantity used to calculate the price of your Data File and you understand and agree that this is reflected in the price for the Data File. In the event that the Data File contains a manifest error resulting from a malfunction on the part of the Application (e.g., the Data File is empty or provides a different type of Data from what was requested) (“Errors”), you may notify us within seven days, and we will either re-run the Data File for you, at no additional charge, or provide a refund of your payment. For purposes of clarity, Errors shall not include issues related to accuracy noted above. The foregoing sets forth your sole and exclusive remedy for any Errors.
7. OWNERSHIP.
Subject to the rights granted to you under these Terms, as between you and Agile, Agile is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Application, the Data Files and the Data, including all intellectual property rights in the foregoing. In the event that you are deemed an owner of any intellectual property rights of any part of the Application, Data File or Data, then you shall, and you hereby do, irrevocably assign to Agile all of your right, title, and interest in and to the Application, the Data Files and the Data, including all intellectual property rights relating thereto.
8. FEEDBACK.
You agree that any questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, provided by you in the form of email or submissions to Agile, are non-confidential. You have no obligation to give Agile any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Application, Data Files or Data. To the extent Agile receives any Feedback from you, Agile may use and include any Feedback that you choose to voluntarily provide to improve the Application, Data Files or Data or any other related products or services, but will be under no obligation to do so. Accordingly, if you provide Feedback to Agile, you agree that Agile, its affiliates, and its and their representatives, licensees, sublicensees, clients, partners and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Application, Data Files or Data or for any other purpose, and that you will receive no compensation with respect to any Feedback you submit. Agile is under no obligation to post or use any Feedback you may provide.
9. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE THAT THE APPLICATION, THE DATA FILES AND THE DATA ARE ALL PROVIDED “AS IS” AND “AS AVAILABLE” WITH ANY AND ALL DEFECTS, ERRORS AND DEFICIENCIES AND WITHOUT WARRANTY OF ANY KIND. AGILE DOES NOT WARRANT THAT THE APPLICATION, DATA FILES OR DATA WILL MEET YOUR REQUIREMENTS, THAT THE APPLICATION, DATA FILES OR DATA WILL BE COMPLETE, SECURE, RELIABLE, OF A PARTICULAR QUALITY, ACCURATE OR AVAILABLE; OR THAT THE USE OF THE APPLICATION, DATA FILES OR DATA WILL BE UNINTERRUPTED, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL DEFECTS IN THE APPLICATION, DATA FILES OR DATA WILL BE CORRECTED BY AGILE. AGILE ALSO DOES NOT WARRANT THAT ANY EMAILS PROVIDED IN THE DATA FILES WILL NOT BE BLOCKED OR REJECTED BY THE RECIPIENT. AGILE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APPLICATION, DATA FILES OR DATA. AGILE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10. INDEMNITY.
You will defend, indemnify and hold harmless Agile, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against all claims, liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) arising as a result of your breach of these Terms or use of the Application, Data Files or Data.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL AGILE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFIT OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT AGILE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. AGILE’S SOLE AND ENTIRE MAXIMUM LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE DATA FILE THAT GAVE RISE TO THE CLAIM. THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL (I) ONLY APPLY TO THE EXTENT PERMITTED BY LAW AND (II) NOT APPLY TO LIABILITY RESULTING FROM AGILE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12. PROPRIETARY INFORMATION.
Agile considers its Data and Data Files to be its proprietary and valuable information (“Proprietary Information”). You agree to: (i) protect and preserve such Proprietary Information from unauthorized use, access, or disclosure using at least the degree of care you use to protect your most sensitive information, but in no event less than a reasonable degree of care; and (ii) not disclose such Proprietary Information to any party without the express written consent of Agile other than to your employees who: (A) need to know such Proprietary Information for purposes of your exercise of your rights or performance of your obligations under and in accordance with these Terms; (B) have been informed of the confidential nature of the Proprietary Information and your obligations under this Section; and (C) are bound by written confidentiality and restricted use obligations at least as protective of the Proprietary Information as the terms set forth in this Section. Proprietary Information shall not include information which (I) was already known to you at the time of disclosure by the Disclosing Party, without restrictions, as proven by prior written records; or (II) is provided to you by a third party that is not bound by any obligation of non-use or otherwise prohibited from disclosing it to you.
13. NOTICES.
We may provide any notice to you under these Terms by sending an email message to the email address you provide to us. Any notice given under these Terms to us must be in writing and must be delivered personally, sent by registered or certified mail, or sent by email to the address below. Notices sent under this Section shall be deemed effectively given when received, if delivered personally (with written confirmation of receipt) or if sent by registered or certified mail (with delivery confirmation), or on the date sent by email with confirmation of transmission, if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient.
Agile Education Marketing, LLC
700 17th Street, Suite 2250
Denver, Colorado 80202
Attention: David Cohen
Email: dcohen@agile-ed.com
14. ARBITRATION.
You and Agile (the “Parties”) agree that any conflict which the Parties are unable to resolve shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association, except as set forth herein. The award or decision shall be rendered by a single arbitrator. A single arbitrator shall be agreed upon the Parties or, if the Parties cannot agree upon an arbitrator within 30 days, then the Parties agree that a single arbitrator shall be appointed by the American Arbitration Association. Such arbitration proceedings shall be conducted in Denver, Colorado. The award or decision through arbitration shall be binding upon the Parties and may be incorporated into and thereupon enforced as an order of a court of competent jurisdiction. You acknowledge and agree that the Parties are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless the Parties otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If, for any reason, a claim proceeds in court rather than in arbitration, you waive any right to a jury trial. The Federal Arbitration Act, federal arbitration law and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 apply to these Terms and any arbitral award granted in connection with a claim. An arbitration decision may be confirmed by any court of competent jurisdiction.
Notwithstanding anything to the contrary herein, you may opt out of the foregoing arbitration provision by notifying Agile of your desire to opt out, which writing must be dated, signed and delivered by U.S. mail or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), or by hand delivery to: Mr. David Cohen, Agile Education Marketing, LLC, 110 16th Street, Suite 506, Denver, Colorado 80202. In order to be effective, the writing must clearly indicate your intention to opt out of the foregoing arbitration provision, and the envelope containing the signed writing must be received (if delivered by hand) or postmarked within 30 days of the date of your order pursuant to these Terms. Should you not opt out of the foregoing arbitration provision within such 30-day period, you shall be bound by the terms of the foregoing arbitration provision. You have the right to consult with counsel of your choice concerning the foregoing arbitration provision.
15. GENERAL.
15.1. No Waiver.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Agile.
15.2. Severability.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
15.3. Force Majeure.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, 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, lockouts, strikes or other labor disputes (whether or not relating to our 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.
15.4. No Assignment.
You may not assign any of your rights or delegate any of your obligations under these Terms, directly or indirectly, by operation of law or otherwise, without our prior written consent in our sole discretion. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
15.5. No Third Party Beneficiaries.
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
15.6. Governing Law.
These Terms will be governed by and construed in accordance with the substantive laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado.
15.7. Entire Agreement.
These Terms, our Acceptable Use Policy, and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.
Have a question? Email prospector_support@agile-ed.com.