Paper Run Terms of Service
Paper Run Services Agreement
Ordering Document
Summary of Services Fees
Services Description: Access and use of Paper Run’s mailing and marketing services platform (the “Platform”) by Customer and Customer’s employees and contractors as further described herein.Fee: Customer shall pay Paper Run the monthly fee, agreed at the point of sign up, for access to and use of the Platform.
Customer shall pay Paper Run a fee per mailer sent. This fee is agreed at the point of sign-up.
Term
Term: This Agreement shall commence on sign up (completion of payment) and will automatically renew on a monthly basis thereafter (the "Renewal Term"). Customer may terminate this Agreement at any time by providing thirty (30) days' written notice to the other party.Customers are obligated to pay for the month in which the notice of termination is given unless the notice is provided at least thirty (30) days before the next payment due date. If the Customer has elected to pay for twelve (12) months upfront, this notice period will apply after the upfront payment period has concluded.
This Services Agreement (this “Agreement”), is made and effective as of signing up to the platform and completing payment, (the “Effective Date”), by L&S Labs Inc., a Delaware corporation (“Paper Run”), and the customer identified above (“Customer”) and includes and incorporates herein by reference the below Terms and Conditions.
TERMS AND CONDITIONS
1. DEFINITIONS.
1.1. “Analytics” means statistics, metrics and other analyses that are based on or derived from the Service, Platform, or Services Data and other related systems and technologies (including without limitation, aggregate measurements of Services usage and performance relating to Customer’s and its Users use thereof).
1.2. “Confidential Information” has the meaning set forth in Section 4.1.
1.3. “Content” means mailers sent by Paper Run as part of the Services and the reports and analytics regarding customers and potential customers.
1.4. “Documentation” means any user instructions, help information, training materials and other documentation regarding the Services (if any) that are made available by Paper Run to Customer in electronic or other form.
1.5. “Eligible Support Recipient” means a User or Administrative User with an active account on the Platform that has not otherwise been suspended or discontinued by Paper Run or Customer.
1.6. “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, neighboring rights, and derivative works thereof; (ii) trademark, service mark, trade dress, and trade name rights; (iii) trade secret and know how rights; (iv) patents, design rights, and other industrial property rights; (v) database rights; and (vi) all other intellectual property rights (of every kind and nature however designated) throughout the world, whether arising by operation of law, treaty, contract, license, or otherwise, whether registered or unregistered, together with all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof.
1.7. “Ordering Document” means the cover page to this Agreement or a supplemental ordering document, which shall be in writing and signed by both parties and shall specify the Services to be acquired by or for Customer.
1.8. “Paper Run Properties” means all Paper Run Confidential Information, Analytics, Documentation, deliverables, reports, Content, the Platform and Services.
1.9. “Platform” means the website developed and/or used by Paper Run and the methodology used by Paper Run in providing the Services (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, dashboards, tools, utilities, content, templates, forms, samples, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and including all corrections, improvements, extensions and modifications thereto and new versions thereof.
1.10. “Services” means the services offered by Paper Run identified in an Ordering Document, including any access to the Platform and the Content, that are made available for access and use, as such may be updated or modified by Paper Run from time to time.
1.11. “Services Data” means any information and data provided by or obtained from Customer and Users in connection with all uses of the Services.
2. SERVICES.
2.1. Account. Customer will be responsible to provide access to the Services for its employees and contractors designated by Customer (“Users”) to use the Services through a Customer-specific account (“Account”). Customer and its Users are solely responsible for maintaining the confidentiality of all Account information (including access credentials), and will be fully liable for any and all activities under the Account. Customer agrees to keep all Account information up-to-date and to notify Paper Run (a) immediately of any unauthorized use of its Account or any other breach of security and (b) promptly of any User or Administrative User who is non-active for any reason, including withdrawal by Customer of authorization granted to any User or Administrative User to access the Services. Except as required by applicable law, Customer will not permit any third party (other than Users and Administrative Users) to access or use the Services without Paper Run’s prior written consent. Customer will notify Paper Run promptly if (i) any person or entity claims to offer a service or system that “integrates with” the Services or (ii) any claims by a third party that it needs to access or use the Services pursuant to a requirement of law.
2.2. License. Subject to all terms and conditions in this Agreement, Paper Run hereby grants Customer a nonexclusive, nontransferable right and license, without the right to sublicense, to access and use the Services (and to permit Users and Administrative Users to access the Services under its Account) solely as permitted and required under the Agreement. Customer shall ensure that each of its Users and Administrative Users comply with all obligations of Customer under this Agreement and under applicable law. Any material breach of any such obligations shall be deemed a material breach by Customer of this Agreement, and Customer shall be responsible and liable for any such breach by any User or Administrative User. Paper Run reserves all rights not expressly granted hereunder.
2.3. Data. Customer agrees to comply with all laws, regulations and rules regarding the use, confidentiality and security of personally identifiable information (collectively, “Personal Information”), to the extent any such law, regulation or rule is applicable to its performance under this Agreement. The Services Data (other than Analytics relating thereto) is, as between Paper Run and Customer, the property of Customer. Customer (on behalf of itself and its Users) grants Paper Run a non-exclusive, worldwide, royalty-free and fully paid right and license (a) to
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access, copy, store, process, distribute, transmit, display, and otherwise use the Services Data as necessary for purposes of providing and improving the Services to Customer and its Users and enabling the operation of the Platform, and otherwise as necessary to perform its obligations hereunder, and (b) to use Customer’s trademarks, service marks, and logos as required to provide the Services. Notwithstanding anything to the contrary herein, Customer (on behalf of itself and its Users) acknowledges and agrees that Paper Run shall have the right to: (a) collect, use, and analyze Analytics, and Paper Run shall be free (during and after the term of this Agreement) to (i) use Analytics to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Paper Run Properties, and (ii) disclose, sublicense, market, sell, and otherwise use and commercially exploit Analytics in aggregate or other de-identified form in connection with its business; (b) use Services Data to protect the rights, property or safety of Paper Run or others or to investigate or enforce suspected breaches of this Agreement; and (c) use Services Data as otherwise provided in this Agreement or as otherwise mutually agreed upon by the parties.
3. PAYMENTS.
3.1. Fee Payment. Customer shall pay Paper Run the fees described in each Ordering Document, in the amounts and at the times set forth therein, and as otherwise stated in this Agreement.
3.2. Fee Payment Terms. Unless specified otherwise in writing by the parties, all amounts due hereunder for the Initial Term shall be paid in full (without deduction, set-off or counterclaim) within ten (10) days of the Effective Date. All payments thereafter will be due at the end of the payment period.
4. CONFIDENTIALITY.
4.1. Scope. The term “Confidential Information” means all trade secrets, know-how, inventions, developments, ideas, templates, and other financial, business or technical information disclosed by or for a party in relation to this Agreement. The restrictions on use and disclosure of Confidential Information will not apply to any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. The Paper Run Properties (including, without limitation, the existence and subject matter thereof), the existence of this Agreement, and pricing information are Paper Run’s Confidential Information.
4.2. Confidentiality. Except for the specific rights granted by this Agreement, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation, the receiving party shall not access, reproduce, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use reasonable care to protect the other's Confidential Information from unauthorized access, use and disclosure (including by ensuring that its employees and contractors who access any Confidential Information have a need to know for the permitted purpose and are bound by obligations that are at least as protective as this Agreement). Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, audit, financing transaction or due diligence inquiry, so long as the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
5. PROPRIETARY RIGHTS.
5.1. Paper Run Properties. Except for the limited rights and licenses to access and use the Services, Content, Platform and Documentation expressly granted hereunder, no other license is granted, no other use is permitted and Paper Run (and its licensors) shall retain all rights, title and interests (including all Intellectual Property Rights) in and to the Paper Run Properties.
5.2. Restrictions. Customer shall not, directly or indirectly (a) use any Paper Run Properties to create any platform, service or documentation that is similar to any Paper Run Properties, (b) attempt to access any component of any Paper Run Properties or to access the Analytics outside of Paper Run provided information, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any Paper Run Properties in any time
share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any Paper Run Properties, (e) disseminate benchmark performance information or analysis for purposes other than as requested by Paper Run, (f) abuse or misuse the Services, including in contravention of applicable law,(g) conduct any penetration or similar testing of any Paper Run Properties, or (h) permit any third party to do any of the foregoing.
5.3. Feedback. Customer agrees that Paper Run will own all Intellectual Property Rights in and to all comments, suggestions and other feedback made by Customer and the Users and other knowledge, experience, know-how, works and documentation (including ideas, concepts, processes and techniques) related to the Paper Run Properties acquired while providing the Services under this Agreement, including but not limited to for the purposes of improving the Paper Run Platform and Services without payment to Customer or Users in any form.
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6. COVENANTS, LIMITED WARRANTIES AND DISCLAIMERS.
6.1. Mutual Representations and Warranties. Customer and Paper Run each represents and warrants to the other that: (a) it has the full corporate right, power, and authority to enter into the Agreement and to exercise its rights and perform its obligations; and (b) its execution and delivery of the Agreement, and the performance of its obligations and duties in connection therewith, do not and will not violate any agreement to which it is bound.
6.2. Customer. Customer represents and warrants to Paper Run that the access, transfer, collection, processing, distribution and use of Services Data as described in this Agreement will not violate any applicable law, regulation or proprietary right (including without limitation, rights regarding privacy, publicity and defamation). Customer’s use of the Services will comply with all applicable law and regulations and Customer’s business, and the services that Customer (and its employees and independent contractors) perform, will be conducted in a professional and workmanlike manner and in accordance with all industry standards and all applicable laws and regulations.
6.3. Paper Run. Paper Run will use commercially reasonable efforts to make the Services available as stated in the Ordering Document, subject to reasonable delay for events outside of Paper Run’s control. Customer’s sole and exclusive remedy for any breach of the foregoing performance warranty is re-performance by Paper Run in a conforming manner.
6.4. Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, PAPER RUN PROPERTIES, AND OTHER SERVICES PROVIDED BY OR ON BEHALF OF PAPER RUN, AND REPORTS, ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. PAPER RUN AND ITS LICENSORS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) PAPER RUN PROPERTIES OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF PAPER RUN, OR REPORTS WILL BE ERROR-FREE, OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) PAPER RUN PROPERTIES OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF PAPER RUN, OR REPORTS, WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR THAT ANY RESULT OR OUTCOME CAN BE ACHIEVED. TO THE FULLEST EXTENT PERMITTED BY LAW, PAPER RUN HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO PAPER RUN PROPERTIES AND OTHER SERVICES PROVIDED BY OR ON BEHALF OF PAPER RUN, AND REPORTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON INFRINGEMENT, QUIET ENJOYMENT, USEFULNESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE.
CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATION OF THE ACCURACY OF ALL REPORTS AND OTHER OUTPUTS FROM THE SERVICES, ANY USE OR MISUSE OF SUCH REPORTS AND OTHER OUTPUTS OR ANY SERVICES GENERALLY, AND FOR PROTECTING ITS DATA FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES.
7. INDEMNIFICATION.
7.1. Customer. Customer agrees to defend Paper Run against any demand, suit, action or other claim by any third party (including any User) arising out of any (a) Services Data, or (b) breach of Customer's representations, warranties and covenants, and to indemnify Paper Run for any and all liabilities (resulting from settlements or judgment awards) based on such claims.
7.2. Paper Run. Paper Run agrees to defend Customer against any demand, suit, action or other claim by any third party that the Services misappropriate or infringes its U.S. Intellectual Property Rights, and to indemnify Customer for liabilities (resulting from settlements or judgment awards) based on such claims. If the Services and/or Platform becomes or, in Paper Run's opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, Paper Run may, at its option: (a) obtain the rights needed to continue using the Services and/or Platform, or (b) replace or modify the Services and/or Platform so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available, then Paper Run may at its option, and without any additional liability to Customer except as expressly set forth below, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. The foregoing states the entire liability of Paper Run, and Customer's exclusive remedy, with respect to any actual or alleged violation of Intellectual Property Rights by the Paper Run Properties, any part thereof or their use or operation.
7.3. Exclusions. Paper Run shall have no liability or obligation hereunder with respect to any claim attributable to (a) any use of the Services and/or Platform not strictly in accord with this Agreement, or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) any use of the Services and/or Platform with any third party Intellectual Property Rights not provided by the Paper Run, or (c) alterations, combinations or enhancements of the Services and/or Platform not created by Paper Run expressly for the use of Users.
7.4. Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (provided the indemnifying party will only be relieved of its indemnification
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obligations to the extent it is materially prejudiced by the indemnified party’s failure to do any of the foregoing) and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the indemnified party's rights or interests without its prior written approval, not to be unreasonably withheld, conditioned or delayed. The indemnifying party shall not be responsible for any settlement it does not approve in writing.
8. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH ANY BREACHES OF SECTIONS 2.1, 2.2, 2.3, 2.6, 2.7, 4, 5.2 OR 6.1 AND EXCEPT FOR THE PARTIES’ RESPECTIVE OBLIGATIONS AND LIABILITIES IN SECTION 7, IN NO EVENT SHALL PAPER RUN (OR ITS LICENSORS) OR CUSTOMER BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY: (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) TOTAL, CUMULATIVE, AGGREGATE LIABILITIES IN EXCESS OF THE FEES PAID OR PAYABLE TO PAPER RUN DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. TERM AND TERMINATION.
9.1. Term. This Agreement shall commence on the Effective Date and continue in effect for the term set forth in the Ordering Document (the “Initial Term”). Thereafter, this Agreement shall automatically renew on a monthly basis until cancelled by either party by giving 30 days’ written notice to the other party.
9.2. Termination. This Agreement may be earlier terminated by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of non payment) after receiving written notice of such breach from the non-breaching party.
9.3. Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) Customer will immediately pay to Paper Run any outstanding balance of fees due by Customer to Paper Run; (b) Customer will cease all use of the Content, the Services and other Paper Run Properties; and (c) all obligations that accrued prior to the effective date of termination, all remedies for any breach of this Agreement and the provisions of Sections 1, 2.3, 2.6 (the third paragraph only), 2.7, 3, 4, 5, 6.1, 6.3, 7, 8, 9.3 and 10 shall survive. Except as otherwise specifically set forth in this Agreement, termination is not the sole remedy and, whether or not termination takes effect, all other remedies remain available except as otherwise expressly limited by this Agreement.
10. GENERAL PROVISIONS.
10.1. Entire Agreement. This Agreement (including the Ordering Document) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements between the parties regarding the subject matter of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile copy (including PDF or other electronic copy) shall have the same force and effect as execution of an original, and a facsimile or digital signature shall be deemed an original and valid signature. Except as expressly provided herein, no change, consent or waiver of this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights hereunder any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Los Angeles County, California, and both parties consent to the jurisdiction of such courts with respect to any such action. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event of any legal suit, action or proceeding in connection with this Agreement, the prevailing party in such legal suit, action or proceeding shall be entitled to recover from the other party, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including attorneys' fees and expenses and court costs.
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10.3. Remedies. Except as expressly specified otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Sections 4 or 5, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies, without the necessity of proving actual damages or posting any bond, and without resort to arbitration.
10.4. No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
10.5. Notices. All notices will be in writing, in English and delivered to the parties at their respective addresses stated herein, or at such other address designated by written notice. Notices will be deemed to have been duly given and effective when received, and shall be personally delivered or sent by overnight courier or certified or registered mail, postage pre-paid, return receipt requested.
10.6. Publicity. Customer hereby consents to inclusion of its name and logos in customer lists and presentation materials that may be published and distributed as part of Paper Run's press releases, marketing, and promotional efforts; provided that, Paper Run will provide Customer with copies of all press releases, marketing, and promotional materials upon request and shall remove Customer’s name and trademark from any such materials as reasonably requested by Customer.
10.7. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld, conditioned or delayed. However, without consent, Paper Run may subcontract performance of all or any part of the services to be provided hereunder to any subcontractor (and disclose Services Data and Confidential Information of Customer to any such subcontractor for such purpose), and either party may assign this Agreement (and all of its rights and obligations hereunder) to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation, reorganization, change of control, or otherwise). This Agreement is binding upon, and inures to the benefit of, the successors, representatives and permitted assigns of the parties hereto.