Data Services Customer Restrictions

These Data Services Customer Restrictions (“Restrictions”) are legally binding upon and applicable to customers of Reseller (each, a “Customer”) for use of the Services offered by GetEmails, LLC d/b/a R!B2B.

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1. DEFINITONS

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1. “Account Information” means information provided by Customer to create, support and maintain an account enabling access to the Service.
2. “Output Data” means the Personal Information and other content or materials that are made available to Customer through the R! B2B Platform, including without limitation commercial “leads” Company provides. Output Data is exclusive of any Submitted Data (e.g., any Submitted Data that is appended to the Output Data).
3. “Order Form” means an ordering document, including an order receipt, related to Customer’s ordering of the Service and specifying the details of Customer’s subscription and any fees to be paid by Customer.
4. “Personal Information” includes any substantially similar terms to “personal information” such as and including “personal data” or “personally identifiable information” and as to each, shall have the meaning given to such terms under applicable law. It includes, without limitation, any information or identifier that is or can be associated with an individual, a browser, or a device.
5. “R! B2B Platform” means the software or other technology provided by Company to Customer under this Agreement.
6. “Service” means the Output Data, the Service Metadata, the R! B2B Platform, and any accompanying or related infrastructure, functionality, technology or analytics, including any services or add-ons described in an Order Form,
7. “Service Metadata” means information collected or inferred by Company in the course of delivering electronic messages (including without limitation information about deliverability and system operations) or otherwise providing the Service,
8. “Submitted Data” means information that Customer provide to Company regarding Customer’s customers or prospective customers in order to facilitate the receipt of the Service, including Customer “CRM” information and any Personal Information contained in it. Submitted Data does not include Cookie Data, Output Data or Service Metadata.

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2. CUSTOMER ACCOUNT; ELIGIBILITY RESTRICTIONS

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1. Eligibility restrictions. Customer shall ensure that only Customer’s employees or service providers, or the employees or service providers of Customer’s wholly or majority owned subsidiaries who have been expressly authorized by Customer to use the Service in accordance with this Agreement, shall use or otherwise access the Service (“Authorized Users”). Customer may not use the Service if Customer or any of Customer’s Authorized Users are a competitor of R! B2B (as determined by Company in its sole discretion). Customer shall ensure that all Authorized Users are at or above the age of majority in their jurisdiction. Customer must comply with any other eligibility restrictions on
   Authorized Users set forth in the Order Form and ensure that Customer’s Authorized Users comply with this Agreement.
2. Account security. Company make no representations or promises regarding the security of the Service. Despite Company’s security efforts, it is possible that unauthorized individuals will obtain Customer’s information, such as through web-scraping tools (even though Company do not authorize and in fact prohibit that behavior). Customer agrees and understands that it will be liable for any activity that occurs through Customer account and further acknowledges and agrees that Customer and its Authorized Users:
   1. are solely responsible for maintaining the confidentiality and security of Customer’s Account Information and account credentials such as its username and password.
   2. may not share Customer’s account credentials and must restrict access to its computers and other devices.
   3. must access the Service and Company’s network, systems, or applications only through encrypted connections.
   4. must maintain up-to-date OS (operating system) patching and active anti-malware on the end-user devices used to connect to the Service or Company’s environment.
   5. must ensure that all terminated employees or other users have their access revoked to the Service within 24 hours of termination
   6. must notify Company promptly (and in any event within 72 hours) of security incidents that could have implications to Company (e.g. users with compromised credentials or lost or stolen devices with access to the Service, compromised networks or systems including malware worm or ransomware, etc.,
   7. will reach out to Company’s vulnerability discovery program at [email protected] if Customer suspects any vulnerabilities with Company’s Service.

3. LICENSE AND SERVICE RESTRICTIONS

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1. Customer may not resell, distribute or otherwise disclose or make available the Service, including any functionally similar or equivalent version of the Output Data (for instance, “J. Smith, CEO, Acme Fun Products, Inc.” would be a functionally equivalent version of “Jane Smith, CEO and Founder, AFP, Inc.”) (hereinafter the “Resale Restriction”).
2. Customer may not access the Service, including any functionally similar or equivalent version of the Output Data, on behalf of any third-party entity or organization.
3. Customer may not transmit information to or through the Service that is fake or fictitious, impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity in connection with Customer’s use of the Service.
4. Customer may not develop any service, product, toolset, dataset or derivative work from the Service, whether in aggregated or non-aggregated form, and whether in identified or de-identified form.
5. Customer may not reverse engineer, decompile or disassemble the Service (in whole or in part).
6. Customer may not access the Service or extract data from the Service in a way that exceeds Customer’s authority from Company or violates this Agreement or other policies or restrictions Company has implemented (whether such implementation is verbal or technical in nature).
7. Customer may obtain Output Data solely through the APIs and interfaces provided by Company. Customer shall not use any other manual or automated means, (including “data scraping,” crawlers or bots) in order to access or obtain the Service.
8. Customer may not leverage, consult with, use, review (in trial, free, or paid form) or rely upon the Service to develop or create a product or feature that is competitive with the Service (or any portion thereof).
9. Customer may not to remove any proprietary notices or label.

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4. ADDITIONAL RESTRICTIONS ON CUSTOMER’S USE OF OUTPUT DATA (THE DATA COMPANY LICENSES TO CUSTOMER)

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Customer may not use the Service (including use of the Service to send email, mail, SMS, push notifications, fax phone or other communications)

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1. to advertise or promote any illegal service or product (or send any other communications) that are illegal in the place offered or consumed.
2. to advertise or promote tobacco or marijuana products, firearms, ammunition or other weapons, counterfeit or pirated goods or services, adult content or services (such as pornography or escort services), unlicensed gambling, investment schemes (including promotion of “pink slip” stocks), astrology or psychic services, lotteries, credit repair services, payday loan services, or any type of hate speech (targeting any societal group).
3. to violate any securities or commodities regulations (such as to promote a “pump and dump” scheme).
4. in a manner that violates any applicable laws (including, without limitation any marketing or data privacy and security laws) or industry best practices or that would cause Company to violate applicable law. In particular Customer agrees not to use the Service in a manner that would violate the U.S. CAN-SPAM Act of 2003, the Canadian Anti-Spam Legislation (CASL), the U.S. TCPA, the Telemarketing Sales Rules or any similar such laws.
5. to defraud, deceive, mislead, discriminate against, harass, libel or defame any person, group or entity.
6. to promote any product or service that is in violation of any person’s or entity’s intellectual property rights.
7. to threaten, promote or commit violence or fraud, or to violate any person’s or entity’s rights.
8. For any purpose subject to the Fair Credit Report Act, including without limitation for the modeling of, or determination of, consumer credit worthiness, consumer credit approval, a consumer’s eligibility for employment or insurance.

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5. ADDITIONAL RESTRICTIONS ON CUSTOMER’S USE OF EMAIL SERVICES:

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1. Failing to include appropriate opt out mechanisms in commercial emails or failing to comply with applicable laws or best practices related to opt-outs or user choice and control principles.
2. Using a fictional identity, pseudonym or alias to send emails.
3. Sending emails that generate an unacceptable (as determined in Company’s reasonable discretion) level of bounces, spam or complaints.
4. Transmitting material that contains or links to virus, trojan horse, worms or any malicious or harmful software program.
5. Using Company’s Service in conjunction with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited emails, text messages or phone calls.

In the event Customer becomes are aware of or suspect a violation of these restrictions and policies, it shall notify Company at [email protected]. Company will determine compliance with these restrictions at Company’s sole discretion. In the event that Company confirms or reasonably suspects that Customer has failed to comply with this Agreement or have otherwise used the Service in an abusive or fraudulent manner or in a manner intended to circumvent Company’s stated policies or rules, Company may immediately terminate Customer’s access to the Service, and, upon Company’s written demand, Customer shall cease all use of the Service and the Output Data.

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6. SUBMITTED DATA AND COOKIE DATA: OWNERSHIP, LICENSES, AND DESIGNATIONS UNDER PRIVACY LAWS

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1. The Submitted Data. All right, title and interest in and to Submitted Data, e.g., Customer’s own CRM files, is owned by Customer. Customer grants Company a license to host, access, copy, use, transfer, and process the Submitted Data for the purpose of providing the Service and carrying out any of Customer’s instructions related to the Service. Company is a “processor” and Customer is a “controller” in those U.S. and other jurisdictions whose privacy laws draw a distinction between “processors” and “controllers” of personal data. For purposes of California privacy laws, e.g., the CCPA, Customer is the “business” as to the Submitted Data, and Company is a “service provider.”
2. The Cookie Data. As between Customer and Company, all right, title and interest in and to Cookie Data is owned by Customer. Customer grants Company a license to host, access, copy, use, transfer, and process the Cookie Data for the purpose of providing, developing and improving the Service, including for purpose of Company’s own internal data linkage and validation. As is further described in the R! B2B Data Protection Addendum, as to the Submitted Data (e.g., Customer’s “CRM” files), Company are each an independent “controller” of the Cookie Data when Company process it, and each an independent “business” (or “third party”) for purposes of California privacy laws, e.g., the California Privacy Protection Act and its successor California Privacy Rights Act (together the CCPA). For purpose of complying with the CCPA (and similar laws), Customer may have an obligation to post “Your Privacy Choices” or similar disclosures and links on Customer’s website, in order to facilitate the choices described in Sections 8-9, below.

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7. CUSTOMER’S REPRESENTATIONS REGARDING THE SUBMITTED DATA AND THE COOKIE DATA.

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Customer represents and warrants that:

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1. It has all necessary rights, permissions, and authority to provide and license the Submitted Data to Company (in whole and in part) for Company’s use as described hereunder, and that doing so will not put Customer in violation of any contracts it has signed or any laws.
2. The Submitted Data is true, accurate, and of living persons and does not contain any sensitive Personal Information, including any information about individuals under the age of 18.
3. Providing the Submitted Data to Company does not violate the U.S. HIPAA law: for instance, it is not (in whole or in part) a list of hospital or doctor’s patients, or a similar dataset consisting of patients or clients of an entity subject to HIPAA (this might include, for instance, a doctor, dentist, chiropractor, acupuncturist, pharmacist or other health professional). Similarly, Customer agrees not to provide Company with Submitted Data consisting of a list of clients of an entity covered by the GLBA, which applies to many types of financial institutions including banks, hedge funds, investment advisers and insurance companies.
4. It will not deploy, or enable Company to deploy, any pixel on any website that is subject to HIPAA.

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8. CONSUMER CONSENTS AND PERMISSIONS

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Customer acknowledges and agrees that it is solely responsible and liable for its use of the Output Data and any communications made in connection with its use of the Output Data, and that the following obligations apply. Customer acknowledges that in some countries, U.S. states or other jurisdictions, it may be required to obtain consent, provide notice or complete some other action in order to lawfully conduct certain types of marketing activities or processing of Personal Information, such as certain email or digital marketing. Customer understands that Company has not provided any notices nor obtained any rights or consents on Customer’s behalf.

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9. DATA PRIVACY AND SECURITY

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1. Nature of Exchange. Company’s Service contains certain elements related to targeted advertising (also known as “cross context behavioral advertising”), or other usage of Cookie Data by Company, as described in this Agreement. This in turn may amount to a “sale” of Personal Information under certain state statutes, and (depending whether Customer are subject to those statutes, which may depend upon Customer’s size or the nature of Customer’s business) such “sale” of information may require Customer to make certain disclosures or provide certain consumer “opt out” or other rights. Company may in turn provide Customer with materials or recommendations regarding these requirements: if Company does so, Customer understands that these are purely advisory in nature and are neither legal advice nor a substitute for legal advice. Customer therefore should consult counsel regarding requirements Customer may have under any such applicable law.
2. Certain laws may require that Customer provide notice to, or obtains consent from a consumer in order to process their Personal Information in relation to the Service. Customer understands and acknowledges that Company recommends that it post a web banner or similar notice on any website from which Personal Information is collected for purposes of the Service containing the below or substantially similar language, provided that such does not constitute and should not substitute for legal advice:
   When you visit or log in to our website, cookies and similar technologies may be used by our online data partners or vendors to associate these activities with other personal information they or others have about you, including by association with your email or online profiles. We (or service providers on our behalf) may then send communications and marketing to these emails or profiles. You may opt out of receiving this advertising by visiting https://app.Company.com/optout.

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10. DISCLAIMERS

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CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK. THE SERVICE (AND ALL OUTPUT DATA PROVIDED THEREIN) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (1) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF PERFORMANCE, (5) OF TITLE, (6) THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, IS CURRENT AND UP TO DATE AND ACCURATELY DESCRIBES ANYTHING, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, OR (8) THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM. EFFORTS BY COMPANY TO MODIFY THE SERVICE SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS OR ANY OTHER PROVISION OF THIS AGREEMENT. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH STATES, THESE WARRANTIES WILL BE DISCLAIMED ONLY TO FULLEST EXTENT PERMITTED BY LAW.

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11. LIMITATION OF LIABILITY

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COMPANY (AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, PARENTS, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, AND RELATED PARTIES) SHALL NOTE BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY, OR FOR ANY CONTENT, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM A PARTY’S ENTITY’S NEGLIGENCE OR GROSS NEGLIGENCE. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY FOR ANY CLAIM UNDER OR RELATING TO THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL OF THE AMOUNT PAID DIRECTLY BY CUSTOMER TO COMPANY DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. ADDITIONAL DISCLAIMERS FROM COMPANY MAY APPEAR WITHIN THE SERVICE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON CUSTOMER’S USE OF THE SERVICE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY.

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12. INDEMNIFICATION

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Customer agrees to indemnify, defend and hold harmless Company, Company’s affiliates, directors, officers, employees, contractors and agents, and Company’s suppliers, licensors, and service providers from and against any actual or threatened loss, liability, claim, demand, damages, costs or expenses, including reasonable attorneys’ fees and expenses (collectively, “Claims”), arising out of or in connection with: (1) Customer’s use of the Service; (2) Customer’s breach of these Restrictions; (3) Customer’s violation of any applicable law or rights held by any third party, including regarding website disclosures; or (4) the Submitted Data.

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13. EQUITABLE AND INJUNCTIVE RELIEF

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In the event of a breach of the restrictions on resale described in section 3, Customer agrees that money damages may not be an adequate remedy. Accordingly, in the event of such breach, Customer agrees that Company will be entitled (without exclusion of other remedies herein, including monetary remedies) to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, including disgorgement of profits. Customer further agree to waive any requirement that R! B2B secure or post any bond in connection with such remedy. Customer further agree that should Company prevail in a suit in which Company assert violation of section 3, Customer will pay Company’s reasonable attorneys’ fees and costs, including costs of investigation.