Last updated April 1, 2024
These MASTER SERVICES AGREEMENT TERMS AND CONDITIONS (the “Terms”) are made and entered into by and between you (the “Client”) and REHG DATA ASSETS, INC. d/b/a RGI Solutions, a Georgia corporation (“RGI”). RGI’s standard statement of work (the “SOW”), any quotation, proposals, order confirmation, and invoice issued by RGI, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of the Client’s general terms and condition regardless of whether or when Customer has submitted such terms. Fulfillment of Client’s order for services does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
By using the Services (as defined below) or signing up as a Client, the Client is agreeing to these Terms. RGI may revise and update these Terms at any time in its sole discretion by posting changes to the Terms on https://www.rgida.com/legal/terms-and-conditions/. Unless Client terminates its account, the new Terms will be effective and binding immediately upon posting. All SOWs and Services are governed by the Terms in effect at the time of service. If RGI makes changes to the dispute resolution provisions set forth in these Terms or makes other changes that RGI determines to be material, RGI will notify Client at the primary email address specified in The Client is responsible for ensuring that RGI has an up-to-date, active, and deliverable email address for Client.
1.1 Services of RGI. Subject to Client’s fulfillment of its responsibilities in Section 2, and if (and to the extent) provided under the SOW, RGI will provide the Direct Mail Campaign Services, Lead Services, Professional Services, and Additional Services (collectively, the “Services”), all described as follows and further described in an SOW, and subject to the terms and conditions of the Agreement and payment of the Fees:
(a) Program parameters such as demographic criteria (age, income, and/or other criteria) may be requested by Client and confirmed by RGI and are outlined in the SOW. All changes to the program parameters including demographics and mailer cards must be agreed upon in writing by both parties and may affect the price or other Fees and will be subject to a written Change Order as set forth in Section 1.2 below.
(b) RGI has developed a proprietary ecommerce platform (“Lead Central”). This platform is to be used for several aspects of Client business including but not limited to Client order management, receiving, and distributing leads and other Data. The use of Lead Central is complimentary for Clients with an average minimum order of 1,000 Leads per month. All use of Lead Central by Clients and their representatives shall be in accordance with the Terms of Use and Privacy Policy of RGI posted on its website (the “Policy”) and each Client representative and agent shall be required to “Accept” the Policy prior to any access or use of the Lead Central. RGI may apply a minimum order requirement and usage pricing set forth herein at any time in its sole and absolute discretion for access to Lead Central.
(i) Custom Lead Delivery Processes. In the event that RGI has developed any custom lead delivery processes for Client, including any such processes which utilize Client’s existing CRM system or other third-party software, Client understands and agrees that all such custom lead delivery processes are developed by RGI and used or utilized by Client at Client’s sole risk and expense. Client further understands and agrees that RGI develops such custom lead delivery processes as a courtesy to Client and that RGI makes no warranty or guarantee as to the suitability of any such custom lead delivery processes for Client’s purposes. RGI shall have no liability whatsoever to Client for any issues, defects, errors, or any costs arising out of or related to Client’s use of such custom delivery processes. No Additional Services shall be commenced or provided without an executed SOW.
(c) Direct Mail Campaign Services. RGI uses data analytics and integrated marketing services to generate custom marketing campaigns for business (“Campaigns”). Subject to the terms and conditions of this Agreement and if (and to the extent) provided in an SOW, RGI will manage all production aspects of these programs and services (collectively, “Campaign Services”), as described in the SOW in accordance with stated timetables. If required, RGI will acquire foundational data (“Data”) internally and/or from third-party licensors for use in Campaigns.
(d) Lead Services. As a core offering, RGI uses data analytics and integrated marketing services to generate custom leads for business (“Leads”). RGI will manage all production aspects of these programs and services (collectively, “Lead Services”), as described in the SOW in accordance with stated timetables. If required, RGI will acquire foundational data (“Data”) internally and/or from third-party licensors for use in campaigns. For purposes of this Agreement, Leads include, without limitation, Direct Mail Leads and Digital Leads. The Lead Services may, to the extent set forth in a SOW, include Direct Mail Lead Services, and Digital Lead Services. For purposes of this Agreement, “Leads” include, without limitation, Direct Mail Leads and Digital Leads. The Lead Services may, to the extent set forth in a SOW, include Direct Mail Lead Services, and Digital Lead Services.
(i) Direct Mail Leads. Subject to the terms and conditions of this Agreement and if (and to the extent) provided in an SOW, RGI will furnish direct mail leads (“Direct Mail Leads”) and direct mail leads services (“Direct Mail Leads Services”) to Client.
(1) For CPL direct mail programs, Client may be entitled to certain credits in connection with the Fees paid under this Agreement with RGI as follows (the “CPL Credit Guidelines”):
(A) Client may submit a credit request to RGI for Bad Leads (defined below) within 90 days after delivery of such Bad Lead. RGI will review such requests and approve any credits for a Bad Lead, which determination will be made in RGI’s sole discretion.
(B) The following data may be used by RGI to determine whether a Lead is a “Bad Lead:”
(i) Deceased. Returned mailer indicates that the mail recipient is deceased.
(ii) Moved. Returned mailer indicates that the intended recipient no longer resides at the address and there is no forwarding address.
(iii) Duplicate Within Same Project. More than one lead card is returned per household per project. Duplicates occurring more than 60 days apart are not eligible for credits.
(iv) Demographic. Returned mailer indicates the recipient does not meet the agreed upon demographic criteria.
(v) P.O. Box Without Contact Information. Mail card mailed to a Post Office Box and returned without additional written contact information. If the card contains a physical address, phone number or email address, then the card is not eligible for a credit.
(vi) Do Not Contact. Returned mailer indicates the recipient does not wish to be contacted by any means Mail card contains clearly fictitious information, as determined by RGI in its sole discretion.
(vii) Blank Card. Returned mailer is returned completely blank.
(C) The CPL Credit Guidelines may be revised at any time by RGI in its sole and absolute discretion. The CPL Credit Guidelines shall apply to CPL direct mail programs only and shall not applyDigital Leads programs/services or any other programs or services provided by RGI.
(ii) Digital Leads. Subject to the terms and conditions of this Agreement and if (and to the extent) provided in an SOW, RGI will furnish digital leads (“Digital Leads”) and digital leads services (“Digital Leads Services”) to Client.
(e) Professional Services. Subject to the terms and conditions of this Agreement and if (and to the extent) provided in a SOW, RGI will furnish certain professional services (“Professional Services”) to Client. The Professional Services may, to the extent set forth in the SOW, include Digital Marketing Services, Data Science Services, and Software Development Services.
(i) Digital Marketing. Subject to the terms and conditions of this Agreement and if provided in a SOW, RGI will furnish digital marketing services (“Digital Marketing Services”) to Client, such Digital Marketing Services to be further described in the SOW.
(ii) Data Science. Subject to the terms and conditions of this Agreement and if provided in a SOW, RGI will furnish data science services (“Data Science Services”) to Client, such Data Science Services to be further described in the SOW.
(iii) Software Development. Subject to the terms and conditions of this Agreement and if provided in a SOW, RGI will furnish software development services (“Software Development Services”) to Client, such Software Development Services to be further described in the SOW.
(f) Additional Services. RGI will provide other additional services (“Additional Services”) agreed upon by the parties from time to time and to the extent set forth in an additional executed Statement of Work (each, an “SOW”), and will be controlled by the provisions of this Agreement and the special terms listed in the applicable SOW upon signature by both parties.
1.2 Change Orders.
(a) Procedures. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. RGI will, within a reasonable time after such request, provide a written estimate to Client of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change to the Services; and (iv) any other impact the change might have on the performance of this Agreement.
(b) Form. Promptly after receipt of the written estimate, the parties will negotiate and agree in writing on the terms of such change (a “Change Order”) to be incorporated in a new SOW. Neither party will be bound by any Change Order unless mutually agreed upon in writing.
(c) Notwithstanding Sections 1.2(a) and 1.2(b), RGI may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, of the fees or any performance dates set forth in the SOW.
2.1 Services – Generally (Applicable to all Services generally). Client’s obligations with respect to this Agreement generally and any and all Services provided by RGI include the following:
(a) General Obligations. Client will:
(i) cooperate with RGI in all matters relating to the Services and provide such access to Client’s premises and other facilities as may reasonably be requested by RGI for the purposes of performing the Services;
(ii) respond promptly to any RGI request to provide direction, information, approvals, authorizations, decisions, records or other documents that are reasonably necessary for RGI to perform the Services in accordance with the requirements of this Agreement;
(iii) provide such materials or information as RGI may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects;
(iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and
(v) follow all reasonable instructions and recommendations provided by RGI that are necessary for the satisfactory provision and completion of Services.
(b) Restrictions Against Use.
(i) Client acknowledges and agrees that all Leads generated under the Agreement are for Client’s use for the generation of business by Client, its agents and representatives in the industry named in the SOW and are to be utilized by Client solely for the benefit of Client’s agents and representatives. No resale, rental, reproduction or transfer of any kind of the Leads by Client to third parties beyond this grant is authorized. All other rights with regard to the Leads are reserved by RGI. Client shall require its agents and representatives to execute agreements acknowledging Client’s obligations, limitations and prohibitions under the Agreement and will monitor its agents and representatives for compliance.
(ii) Client is prohibited from sharing, renting or otherwise providing the Data to any third party without the prior written consent of RGI. Unless otherwise expressly stated in an SOW, the Data is provided solely for use in the Industry named in the SOW. The Data shall not, directly by Client or indirectly, be used in connection with or as part of the preparation, publication, cleaning or maintenance of any directory of any nature. Client will not use or permit the use of the Data for compiling, enhancing, verifying, supplementing, adding to or detracting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, or provided to a third party. Client will not use or permit use of the Data for generating any statistical information which is sold, rented, published, furnished or in any manner provided to a third party, or use or permit the use of the Data in connection with individual credit or employment applications. In no event may Client use or permit the use of any Data to advertise, sell, or exchange any products or services that involve sexual paraphernalia; drug paraphernalia; pornographic materials; weapons; credit repair services or other illegal or illicit activities.
(iii) RGI authorizes Client’s use of the Data, Leads and any other Services, subject to the terms and conditions of the Agreement. If Client violates any of the terms of this Section 2.1(b), this authority is immediately revocable by RGI.
(c) Opt-Outs. Client acknowledges and agrees that any act or omission by Client, its representatives and/or its agents to “opt-out” any Lead from any website, Lead Central, any marketing campaign, or any other platform (collectively, the “System”) on behalf of an individual other than the individual performing the “opt-out” is prohibited and is a form of identity theft, punishable by criminal and civil action by the individual whose identity is being falsely removed from the System. All such acts are absolutely prohibited, and RGI shall report any such activity to the federal and state authorities, including log-in information and all other data in its possession from the Client, its representatives and agents. Client shall notify all of its representatives and agents of this strict prohibition.
2.2 Lead Central Orders (Applicable to Direct Mail Campaign Services and Leads Services) If RGI is providing Direct Mail Campaign Services and/or Leads Services to Client pursuant to a SOW, Client’s obligations include the following:
(a) Client will request Direct Mail Campaign orders, Direct Mail Leads orders and Digital Leads orders (collectively the “Orders“) from RGI directly and preferably using Client’s Lead Central Platform account (“Lead Central Account”). Once received by RGI, Order requests will be reviewed by RGI and if approved by RGI, such requests will be deemed automatically accepted Orders and such orders will be added to the Client’s Lead Central Account.
(i) Recurring Orders. If applicable, Orders will be processed on an automatic recurring basis (“Recurring Orders”) on such dates which are determined by RGI in its sole discretion and communicated to Client (“Recurring Order Date”). Information on and the status of Recurring Orders may be found in RGI’s Client order(s) section of Lead Central. In addition, Recurring Orders will continue indefinitely until cancelled by Client on the Client’s Lead Central Account.
Client will have options to view, modify and/or cancel their Recurring Orders at any time prior to the Recurring Order Date. If the Client does not timely modify or cancel any Recurring Order, the Client will be responsible for such order and will be responsible for the Fees associated with such order.
RGI may, in its sole discretion, terminate Client’s Recurring Orders at any time without notice. If RGI does so, Client will only be charged for the services rendered and/or leads generated from Orders that have already been processed up and until the effective date of termination.
(b) Lead Central/Lead Data and Images. All Data and Lead images for which RGI has been paid will be stored in Lead Central and made accessible for active Clients for a period no longer than twelve (12) months from date of upload. Data and Lead images with an upload date in excess of eighteen (18) months, as well as other related data may be archived or permanently removed and permanently destroyed by RGI.
(c) Other Obligations. Any other obligations of Client with respect to services (including Direct Mail Campaign Services, Direct Mail Leads Services and Digital Leads Services) shall be set forth in the SOW.
2.3 Professional Services (Applicable to Professional Services). If RGI is providing Professional Services to Client pursuant to a SOW, Client’s obligations include the following:
(a) Retention of Email Deployment. If RGI is deploying an email marketing list not purchased from (or provided by) RGI or an email marketing list provided by Client or any of its vendors, Client represents and warrants that the list contains fully verified and opted in information. Client represents and warrants that they have examined the terms and conditions under which the addresses in such email marketing lists were originally compiled and determine that all recipients have in fact opted‐in to the type of mailing list the End User intends to operate. Lists must be used for their original purpose. If requested by RGI, Client shall fully disclose all terms and conditions of each and every email marketing list. Client understands and agrees not to provide or market to emails of Canadian origin in compliance with Canada’s Anti‐Spam Legislation of 2014 (CASL), unless Client can provide proof of expressed consent from these email subscribers prior to sending the commercial email. Client therefore agrees to indemnify, defend, and hold harmless RGI and its affiliates, third-party suppliers, officers, directors, employees, agents, successors, and permitted assigns from and against any fines or violations arising out of or resulting from compliance with CASL email communications or any email marketing list not purchased from (or provided by) RGI or provided by Client or any of its vendors.
(b) Other Obligations. Any other obligations of Client with respect to Professional Services shall be set forth in the SOW.
3.1 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for the period of one (1) year (the “Initial Term”). Upon expiration of the Initial Term, the Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”). Either party may terminate this Agreement upon provision to the other of sixty (60) days prior written notice.
3.2 Termination.
(a) Either party may terminate this Agreement upon the occurrence of a material breach by the other party, which material breach has not been cured within thirty (30) days after the date of written notice to the breaching party (“Cure Period”); provided, however, if either party commits a material breach of this Agreement within the first ninety (90) days after the Effective Date, the other party may immediately terminate this Agreement and, if Client is the breaching party, Client will forfeit all advanced payments made as of effective date of termination.
(b) RGI may immediately terminate this Agreement: (i) if Client becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise; (ii) if any substantial change takes place in the management, ownership, or control of Client resulting in the management, ownership, or control of Client by a competitor of RGI, or if Client manages, owns, or controls a competitor of RGI; (iii) if Client fails to make payments within sixty (60) days of their due date; or (iv) upon the occurrence of a breach by Client or its representatives of Sections 2, 4 or 5.
3.3 Post-Termination. Upon the expiration or termination of this Agreement:
(a) The provision of Services shall automatically terminate;
(b) All Fees and expenses shall be immediately payable to RGI and no prepaid fees or deposits shall be refunded to Client. Early termination of the Agreement or any Work Order may be subject to cancellation fees and/or other administrative charges;
(c) Client shall pay for any and all Direct Mail Leads generated by RGI during the twelve (12) week period following the last mailer mailing date;
(d) Provided the Agreement is not terminated for the breach of the Agreement by Client, Client, its agents and representatives may continue to use Leads which exist as of the effective date of termination in accordance with the terms of the provisions named in Subsection 3.3 (d) below. Client shall confirm in writing to RGI that all use of the Leads, direct and indirect, has not and will not be, and has not been, used, copied or transferred to any party;
(e) The provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 as well as any provisions in an Exhibit or Addendum to the Agreement which by its terms is intended to survive shall survive any expiration or termination of this Agreement.
4.1 Direct Mail Services Replenishable Retainer. RGI invoices for CPM Direct Mail Campaigns upon order processing. For all Direct Mail Services, Client shall pay to RGI a replenishing retainer (a “Retainer”) equal to the amount stated on the SOW as security for the payment of the Fees (defined below) for the duration of the Agreement. Upon termination of the Agreement or completion of the Services, any Retainer funds in excess of Fees owed to RGI will be refunded to the Client, subject to Section 3.3 of the Agreement. Periodically, RGI will monitor order volume changes and reserves the right to adjust the Retainer amount accordingly. All Retainer funds will be invoiced separately from Leads and must be paid prior to RGI’s commencement of Services. Notwithstanding the foregoing, the Fees for Digital Leads and CPL Direct Mail Leads will be payable in arrears in accordance with the terms and conditions of this Agreement, or as otherwise set forth in an applicable SOW.
4.2 Fees. Client shall pay RGI all applicable fees and charges as indicated in this Agreement and the applicable SOW (collectively, the “Fees”). All amounts shall be due and payable within from the date of each invoice (each such date, the “Due Date”). Client’s obligation to pay the fees and charges set forth on each invoice is entirely independent of whether Client receives payment from its own customer(s). Preferred payment mode is ACH, EFT or by check. Checks refused by the bank shall be assessed a service charge of $30.00 or five percent (5%) of the face amount of the check, whichever is greater. Client shall be responsible for any and all processing fees or other fees or surcharges resulting from or associated with Client’s payment by credit card.
4.3 Currency; Taxes. All payments to RGI shall be in US currency and by a means pre-approved by RGI. All Fees are net of taxes which shall be the responsibility of the Client, other than corporate income taxes of RGI.
4.4 . Failure to pay any invoice by the Due Date will incur a late fee of $50.00 per month or three percent (3%) of the delinquent Fees, whichever is greater. Any amounts not paid within thirty (30) days after invoice shall bear interest at a nominal rate of twenty-one percent (21%) per annum (1.75% per month), or the maximum legal rate if less, accruing from the payment due date. RGI shall be permitted to withhold performance until payments are made in full. Client shall reimburse RGI for all costs of collection, including reasonable attorneys’ fees.
4.5 Suspension of Services. In the event of Client’s breach of this Agreement, including non-payment of any Fees due to RGI, RGI may immediately suspend performance of the Services in its sole discretion, including Client’s access to any and all lead generation programs or systems.
5.1 Intellectual Property Rights. Lead Central, Proprietary Information and all other software systems used in the delivery of the Services are Intellectual Property of RGI. All right, title and interest in the Data will remain the property of RGI or its licensors and no right, interest in or title to any Data or any other Intellectual Property will be sold, conveyed or otherwise transferred to Client or any third party. RGI grants only a limited non-exclusive, non-transferrable, and revocable license of express use as provided in this Agreement to Client. All other rights in the Data and the Intellectual Property are reserved solely to RGI and its licensors. RGI owns and shall retain all right, title and interest in and to the Intellectual Property Rights and the Proprietary Information of RGI, including without limitation all software, source and object code, specifications, designs, processes, techniques, concepts, improvements, discoveries and inventions, including without limitation any updates, upgrades, enhancements, modifications, improvements or derivative works thereof and all works of authorship created, invented, reduced to practice, authored, developed, or delivered by RGI or any third party, either solely or jointly with others, arising from this Agreement or any amendment to it, including without limitation all copies and portions thereto, whether made by or under the direction of RGI. For purposes hereof, “Intellectual Property” and “Intellectual Property Rights” means any and all known or hereafter known tangible and intangible worldwide patents, copyright, moral rights, trademarks, trade secrets, confidential information or other intellectual property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing).
5.2 Nondisclosure.
(a) For purposes hereof, “Proprietary Information” shall mean, collectively and without regard to form, Confidential Information and Trade Secrets. “Confidential Information” shall mean nonpublic proprietary information other than Trade Secrets, of value to its owner, and any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction be trade secret under applicable law. “Trade Secrets” means information which: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(b) RGI acknowledges that Client will provide RGI with Proprietary Information of Client in connection with this Agreement, provided, however, RGI works with clients competitive to Client and is, therefore, deeply knowledgeable of the Industry of Client. Client acknowledges that during the Term it will receive and have access to Proprietary Information of RGI. Each party agrees with the other (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement, and shall exercise due care to monitor and ensure compliance with this Agreement. Proprietary Information will not include information that: (i) is or becomes available to the public through no fault of a receiving party (either Client or RGI) (“Receiving Party”); (ii) is disclosed to Receiving Party by a third party who had lawfully obtained such information and without a breach of such third party’s confidentiality obligations; (iii) is proven to be developed independently by the Receiving Party without use of any kind of the Proprietary Information; or (iv) the disclosing party (“Disclosing Party”) (either RGI or Client) has given written permission to Receiving Party to not maintain confidentiality. The nondisclosure and confidentiality obligations set forth in this Section 5.2(b) shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof. Client acknowledges that any breach by Client of these confidentiality obligations would cause substantial and irreparable damage to RGI, that money damages would be an inadequate remedy, and that RGI will be entitled to an injunction, specific performance, or other equitable relief for breach of this Agreement without any requirement to post bond as a condition for that relief.
6.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of incorporation or organization; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
6.2 Authorization. Client hereby represents and warrants to RGI that: (a) Client has the full power, authority and legal right necessary to enter into, execute and deliver the Agreement, (b) Client possesses all rights necessary to authorize RGI to perform the Services; (c) the Agreement has been duly and validly entered into, executed and delivered by Client and; (d) the Agreement constitutes the legal, valid and binding obligation of the Client, enforceable within its terms.
ACKNOWLEDGEMENT; DISCLAIMER OF WARRANTY.Client acknowledges that the Data provided and/or utilized by RGI and its third-party vendors will contain a degree of error. Client also acknowledges that the prices that RGI charges for the Leads and other Data (and any other products, services, or combination of products and services provided or offered by RGI) are based, in part, upon RGI’s expectation that the risk of any damages, claims, loss or injury that might occur will be borne by Client. For these reasons, Client agrees that it is solely responsible for determining that the Data is sufficiently accurate for Client’s purposes. Any requests for refunds must be submitted in accordance with RGI’s Credit Guidelines. The Data and Leads, including, but not limited to, postal and email records, names and addresses are not guaranteed as deliverable, but RGI makes reasonable commercial efforts to meet or exceed industry standards for postal deliverability. RGI makes no representation or guarantee as to the conversion results of the mailing. RGI MAKES NO, AND DISCLAIMS ALL, EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE LEADS, PROGRAM AND OTHER SERVICES PROVIDED HEREUNDER.
LIMITATION OF LIABILITY. IN NO EVENT SHALL RGI OR ITS THIRD PARTY SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND OR CHARACTER (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES) THAT CLIENT, ANY CLIENT OF CLIENT, OR OTHER PARTY, SUFFERS OR INCURS ARISING OUT OF ANY ACTS OR OMISSIONS OF RGI OR ITS THIRD-PARTY SUPPLIERS IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED HEREUNDER, REGARDLESS OF THE CAUSE OF THE LOSS, DAMAGE OR INJURY AND REGARDLESS OF THE NATURE OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE DELIVERY OR USE, OF THE DATA, REGARDLESS OF THE FORM OF ACTION. RGI MAKES NO ASSERTION, WARRANTY OR GUARANTY WITH REGARD TO RESULTS OR OTHER OUTCOMES FROM THE LEADS, THE DATA, OR RECEIPT OR USE OF THE SERVICES IN ANY MANNER WHATSOEVER. THE CUMULATIVE LIABILITY OF RGI TO CLIENT AND ANY OTHER PARTY FOR ANY CLAIMS RELATING TO OR ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES ACTUALLY PAID TO RGI HEREUNDER. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.
9.1 Data Breach of Compliance. Client will comply with all state and federal breach notification laws in connection with any unauthorized access to or loss of Data that is under Client’s control. Client shall immediately notify RGI of any unauthorized access to or loss of Data that is under Client’s control.
9.2 Marketing Materials and Solicitations Compliance. All marketing materials and solicitations will not make reference to any selection criteria or presumed knowledge regarding the intended recipient of such solicitation, and must be in good taste and of the highest quality. RGI reserves the right to require Client to obtain RGI’s advance approval of any material which the customer proposes to mail or distribute, and Client acknowledges that it may not distribute the Data to any third party without the prior written approval of RGI. All mailers, marketing materials and solicitations provided by, developed by, sent by, or mailed by Client, directly, indirectly, or on behalf of Client, including, without limitation, any such mailers, marketing materials and solicitations provided by, developed by, sent by or mailed by RGI (on Client’s behalf, for the benefit of Client, or otherwise), shall be the sole responsibility of Client, and Client shall be solely liable for any and all accuracy, truthfulness and compliance of mailers, marketing materials and solicitations (whether developed by Client or by RGI on Client’s behalf or for the benefit of Client) with all applicable laws, rules or regulations. Client represents and warrants that it will thoroughly review and inspect all mailers, marketing materials and solicitations provided by, developed by, sent by or mailed by RGI for such accuracy, truthfulness and compliance immediately upon RGI’s delivery of such mailers, marketing materials and solicitations to Client for approval. RGI will not deploy any Marketing materials and solicitations that are not signed off as approved (Client accepts and assumes the risks of, and liability for, any inaccuracies and/or untrue statements contained within such content and/or noncompliance such mailers, marketing materials and solicitations with any applicable law, rule or regulation.) by the client.
9.3 Do-Not-Call Compliance. Client represents and warrants that Client and its representatives will comply with the rules relating to any Do‐Not‐Call Registry promulgated by federal, state, foreign, international or self‐regulatory bodies (such registries and lists collectively, the “DNC Registries”), specifically including, but not limited to, those rules that:
(a) Require all sellers who initiate, or cause a telemarketer to initiate, an outbound telephone call that is not otherwise exempt, to pay the appropriate fees for any DNC Registries;
(b) Require all telemarketers who initiate an outbound telephone call, that is not otherwise exempt on behalf of a seller, to ensure that the seller has paid all appropriate fees for any DNC Registries; and iii. Require any company performing scrubbing of any DNC Registries on behalf of a seller to ensure that it is scrubbing the calling lists against that seller’s and only that seller’s version(s) of the DNC Registries
Client hereby certifies that it will use the information gathered from the DNC Registries solely in compliance with the provisions of any applicable acts, guidelines or regulatory or self‐regulatory body or otherwise to prevent telephone calls to telephone numbers on the registry.
9.4 Compliance with Federal and State Laws.
(a) Client shall not use nor permit the use of the Data in violation of any federal, state, local, or international law, rule, or regulation or for any unlawful purpose, and will comply with the Association of National Advertisers’ Guidelines for Ethical Business Practice available at: https://www.ana.net/accountability#resources. Client agrees to comply with any and all current and future federal, state, local and international laws concerning use of the Data, telephone solicitations and marketing, and the transmission of facsimiles and email, including but not limited to, the Telephone Consumer Protection Act of 1991, the CAN‐SPAM Act of 2003, Canada’s Anti‐Spam Legislation of 2014, Fair Credit Reporting Act (FCRA), the Federal Trade Commission (“FTC”) Telemarketing Sales Rule, and any other existing or future FTC rules or Federal Communications Commission rules and any enforcing regulations related to the foregoing. Client understands that any person violating such laws, rules or regulations may be subject to substantial civil and criminal penalties for each transmission of any unsolicited facsimile or other information. Client acknowledges that the U.S. Federal government, certain states and self‐regulatory bodies may each have restrictions on telemarketing activities, including but not limited to, permitting a telephone subscriber to give public notice that such subscriber does not wish to receive sales solicitation telephone calls. Due to the varying publication dates of such notices, RGI disclaims any warranty, expressed or implied, that the names and telephone numbers of all such subscribers have been identified on or deleted from any Data or other list provided to Client.
(b) If any existing law or regulation is changed or if any new law or regulation is enacted that affects the Leads, Data, its use, or Services provided under this Agreement, RGI and/or Client may modify this Agreement to the extent reasonably necessary to ensure that use of the Leads and/or Data will be in full compliance with such laws and regulations and RGI may modify the pricing applicable to such Data. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. When these changes are made, a notification will be posted on the RGI website or otherwise provided to Client.
10.1 In addition to any of the remedies provided in the Agreement, Client, its directors, officers, employees and agents and their respective affiliates, successors, heirs and assigns (the “Indemnifying Party”) agrees to defend, indemnify and hold RGI its parent, affiliates, subsidiaries, shareholders, directors, officers, employees and agents (collectively, the “RGI Indemnified Parties”) harmless from and against any and all claims, damages, losses, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees) (collectively, “Losses”) sustained, suffered, paid or incurred by the RGI Indemnified Parties as a result of (i) the breach of any provision of the Agreement; (ii) Client’s or its authorized representatives failure to comply with any applicable law, rule, or regulation in connection with the Data, including without limitation, the Leads; (iii) any claims stemming from any act or omission by Client in connection with the Agreement, the Addendum, SOW’s or Exhibit; and/or (iv) any failure of any Leads or Data, direct mail messaging content, mailed marketing materials, solicitations, other marketing materials or other work product or deliverables (whether or not developed by RGI on behalf of Client or for the benefit of Client) to comply with any applicable law, rule or regulation, and/or any inaccuracies and/or untruthfulness of any Leads, Data, direct mail messaging content, mailed marketing materials, solicitations and/or other marketing materials or other work product or deliverables. RGI will give Client prompt notice of any claim or action alleging facts which, if true, would constitute a breach of any of Client’s obligations under this Agreement or any applicable addendum.
10.2 In connection with a claim under this Section 10, Client shall, upon notice from an RGI Indemnified Party of such claim, bear full responsibility for the defense; provided however, that Client shall keep the RGI Indemnified Party informed of, and consult the RGI Indemnified Party in connection with the progress of such litigation or settlement. Client shall have the right, with the approval of the RGI Indemnified Party, which shall not be unreasonably withheld, to settle any such claims on terms and conditions of its own selection, so long as such settlement in no manner limits, unduly interferes with, or otherwise adversely affects the RGI Indemnified Party’s rights granted in this Agreement, nor imposes any liability on the RGI Indemnified Party(ies), nor contains a stipulation to or admission or acknowledgment of any liability or wrongdoing (whether in contract, tort or otherwise) on the part of the RGI Indemnified Party(ies). In the event that Client fails to promptly investigate and defend or settle any claim as provided, then the RGI Indemnified Party(ies) shall have the right from that time forward to have sole control of the defense of the claim and all negotiations for its settlement or compromise, and Client shall remain liable and pay any amounts incurred by the RGI Indemnified Party(ies) as a result thereof, and Client shall satisfy any resulting settlement, award or judgment thereof.
11.1 Governing Law; Venue. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Georgia, without giving effect to its conflict of laws rules. Venue for any equitable action related to or arising out of this Agreement shall be solely in the state or federal courts located in and around Atlanta, Georgia and the parties irrevocably commit to the jurisdiction of said courts. The prevailing party in any dispute arising under or in connection with this Agreement shall be entitled to a reimbursement by the losing party of its costs and expenses in connection with such dispute, including without limitation, reasonable attorneys’ fees.
11.2 Arbitration. Except in the event of equitable relief, all disputes arising from and related to this Agreement shall be resolved by binding arbitration. The arbitration will be conducted in accordance with the procedures in this document and the AAA’s Commercial Arbitration Rules (“AAA Rules“). In the event of a conflict, the provisions of this document will control. The arbitration will be conducted in Atlanta, Georgia before one (1) arbitrator jointly selected by the parties, regardless of the size of the dispute with procedures and timing to be as provided in the AAA Rules. All aspects of the arbitration will be treated as Confidential Information. Neither the parties nor the arbitrators may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements (but providing prior notice of disclosure to the other party). The result of the arbitration will be binding upon the parties and the prevailing party shall be entitled to the full amount of such party’s expenses, including all court costs and attorneys’ fees paid or incurred in connection therewith, in addition to such other relief as such party may be granted by the arbitrator. The parties waive objection to venue, including on grounds of forum non conveniens, to bringing a legal action in Atlanta, Georgia. Client agrees to submit to personal jurisdiction in said forum.
11.3 Excused Performance. No party shall be in default for failure or delay in fulfilling or performing any obligation under this Agreement (except for any obligations to pay any Fees or any other payments hereunder), if such failure is due to an act of God, act of war, war, terrorism or similar event (“Force Majeure”) and such party acts diligently in attempting to remedy the cause. The affected party shall promptly give written notice to the other party of the event of Force Majeure, and shall be given additional time to perform in a period equal to the delay directly caused by such event.
11.4 Independent Contractors. Nothing in this Agreement or any applicable addendum shall be construed to create a partnership, joint venture, or agency relationship between the parties. The parties to this Agreement are independent contractors and neither party has any authority to bind or commit the other in any respect whatsoever, and neither party shall hold itself out as the agent, principal, partner, associate or joint venturer of the other or as having any power or authority to bind or commit the other party.
11.5 Advertising and Promotions. Client will not use RGI’s name or otherwise expressly or impliedly refer to any of them in any advertising, promotional literature, press release or other form of public disclosure without the prior written approval of the appropriate officer of RGI.
11.6 Covenant Not to Solicit Personnel. Client agrees that Client will not during the term of this Agreement and for a period of twelve (12) months after the termination date of this Agreement for any reason, solicit for employment, attempt to employ or affirmatively assist any other person or entity in employing or soliciting for employment any person employed or hired as an employee by RGI.
11.7 Notices. All notices, requests, demands and other communications required or permitted to be given hereunder to a party shall be in writing, sent to the email or physical address set forth on the SOW, or at such other address as such party may hereafter provide, and shall be deemed given and received (i) on the day sent, if delivered by email; (ii) on the day delivered, if delivered by hand, (ii) four (4) days after placement with the US Postal Service, if mailed by United States registered or certified mail, return receipt requested, postage prepaid and properly addressed, or (iii) on the next business day after deposit with a national overnight courier service sent by priority delivery.
11.8 No Waiver. No delay or failure by any party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.
11.9 Injunctive Relief. Each party acknowledges that any other party will be irreparably damaged (and that damages at law would be an inadequate remedy) if the Agreement is not specifically enforced. Therefore, in the event of a breach or a threatened breach by any party of any provision of the Agreement, then the non-breaching party shall be entitled, in addition to all other rights or remedies, to an injunction restraining such breach or continuing breach, without being required to show any actual damages or to post any bond or other security, and/or to a degree of specific performance of the provisions of the Agreement.
11.10 Successors and Assigns. The Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the Parties and their respective legal representatives, successors and assigns. This Agreement is not assignable by Client without the prior written consent of RGI. The consent of RGI to any such assignment shall be conditioned upon, among other matters determined by RGI in its sole discretion, (I) all outstanding obligations of Client to RGI arising prior to such assignment being paid in full; and (II) the assignee or other beneficiary of such assignment assuming in writing, to the satisfaction of RGI in its sole discretion, all obligations of Client hereunder, provided such written assumption is delivered to RGI prior to such assignment.
11.11 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a tribunal or court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
11.12 Entire Agreement. This Agreement and its Exhibits constitute the entire Agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior written proposals, representations, discussions, and understandings, whether verbal or written. This Agreement, except as expressly stated, may be amended only by a subsequent writing, signed by the parties.
RGI-TC-240401