Terms & Conditions

The Terms and Conditions (“T&C”) set forth below, together with the Data Subscription Order Form (the “Order Form”) of Dynamic Data Solutions, LLC, shall apply to all customers of Dynamic Data Solutions, LLC (the “Customer”). The T&C and the Order together constitute the agreement of the parties and are hereinafter collectively referred to as the “Agreement.” If there are any conflicts between this T&C and any other agreement between DDS and Customer, including but not limited to the Order Form, this T&C shall control, unless such agreement specifically provides otherwise.

“Data” means data into complied by Dynamic Data Solutions, LLC in its the proprietary database/data compilation and such proprietary database/data compilation.

“Dynamic Data Solutions, LLC” (“DDS”) means the Pennsylvania limited liability company with its principal place of business at 1554 Surrey Brook Court, Yardley, Pennsylvania 19067.

“Licensee” means the party to whom DDS is to provide Data pursuant to the Ordering Form. If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under the Agreement, including but not limited to any renewal, extension, termination, or modification of the Agreement.

1. SUBSCRIBED DATA AND GRANT OF LICENSE.

1.1. Grant of License. DDS agrees to provide Licensee with a non-exclusive, non-sublicensable, and non-transferable license during the term set forth in the Order Form (“Term”), as defined in Section 2.1 herein, to use the Data solely for the business-to-business sales, marketing, recruiting, or business development activities of Licensee (the “Permitted Use“), subject to and conditioned upon Licensee’s payment of the fees set forth in the Order Form (“Fees”). DDS shall deliver the Data by providing access through the internet to Licensee starting within one day of receiving payment of the Fees.

1.2. Use Restrictions. Licensee shall only use the Data for the Permitted Use and shall not disclose, release, distribute, or deliver the Data, or any portion thereof, to any third party without DDS’s prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by DDS. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Data, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Data or methods used to compile the Data, in whole or in part; (iv) remove any proprietary notices included within the Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the Data; or (vi) use the Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

1.3. Designated Users. Licensee shall be entitled to designate persons as users of the Data (“Designated Users”) up to the number of Designated Users subscribed as stated in the Order Form. The total number Designated Users will not exceed the limits set forth in the Order Form, except as expressly agreed to in writing by DDS and Licensee and subject to any appropriate adjustment of the fees payable thereunder. Licensee shall be responsible for compliance with the terms of this Agreement by all Designated Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Licensee shall not designate any person as a Designated User if Licensee has reason to believe such person is likely to use the Data on behalf of a third party or otherwise in violation of the Agreement.

1.4 Unauthorized Access and Use. In the event DDS has a reasonable belief that Licensee or any Designated User is engaged in or facilitated any unauthorized access or use of the Data in violation of the Agreement, DDS, in its sole discretion, may immediately suspend Licensee’s access to the Data until such violation is resolved to DDS’s reasonable satisfaction. DDS will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of the Agreement nor on Licensee’s obligation to pay Fees.

1.5 Changes to Data. The Data will be provided as they exist and are updated and amended throughout the Term. The Data may be updated on an ongoing basis. Licensee understands and acknowledges that the contents of the Data will change over time as it is updated, and that at any given time it has a right to access and use the Data to which it is subscribed as it exists at that time. The Data are provided “as is” and as they may be modified, supplemented, or removed from time to time in DDS’ sole discretion.

1.6. Ownership. Licensee acknowledges that, as between Licensee and DDS, DDS owns all right, title, and interest, including all intellectual property rights, in and to the Data. Licensee further acknowledges that: (a) the Data is an original compilation protected by United States copyright laws; (b) DDS has dedicated substantial resources to collect, manage, and compile the Data; and (c) the Data constitutes trade secrets of DDS. Licensee acknowledges and agrees that it will be considered a material breach by Licensee under this Agreement if Licensee contests any of DDS’s right, title, or interest in or to the Data, including without limitation, in a judicial proceeding anywhere throughout the world.

1.7. Reservation of Rights. DDS reserves all rights not expressly granted to Licensee in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Data.

2. TERM AND TERMINATION.

2.1. Term. The initial term of the Agreement begins on the date of the Order Form and unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term“). The Agreement will renew for additional successive years upon payment by Licensee to DDS of the then current yearly subscription price (each a “Renewal Term” and together with the Initial Term, the “Term“).

2.2. Termination by DDS. DDS may terminate the Agreement, effective on written notice to Licensee, if Licensee fails to pay any amount when due hereunder, or breaches any of the Use Restrictions set forth in Sections 1.2 and 4 herein.

2.3 Termination by Either Party. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (c) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (d) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (e) makes or seeks to make a general assignment for the benefit of its creditors; or (f) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

2.4. Effect of Expiration or Termination. Upon expiration or earlier termination of the Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 4 herein, Licensee shall cease using and delete, destroy, or return all copies of the Data and certify in writing to DDS that the Data has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.

2.5 Survival. Any rights, obligations, or required performance of the Parties to the Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

3. FEES AND TAXES.

3.1 Fees. Licensee shall pay DDS the Fees set forth in the Order Form without offset or deduction. Licensee shall make all payments hereunder in U.S. dollars upon signing the Order Form.

3.2 Taxes. All Fees and other amounts payable by Licensee under the Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on DDS’s income.

4. CONFIDENTIALITY AND DATA PROTECTION.

4.1 Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Without limiting the foregoing, for purposes of the Agreement, the Data will be deemed Confidential Information of DDS. Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

4.2 Data Security. Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures, and security procedures to safeguard and ensure the security of the Data and to protect the Data from unauthorized access, disclosure, duplication, use, modification, or loss.

4.3 Personal Information. To the extent that either party transmits or receives personal information under the Agreement, such Party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information (collectively, “Applicable Privacy Laws”). Each Party shall have an obligation to immediately notify the other Party if it makes a determination that it can no longer meet compliance obligations under applicable privacy or data protection laws.

5. INDEMNIFICATION, REMEDIES AND LIMITATION OF LIABILITY.

5.1 DDS Indemnification. DDS shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (“Losses“) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that Licensee’s Permitted Use of the Data infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Licensee promptly notifies DDS in writing of the claim, cooperates with DDS, and allows DDS sole authority to control the defense and settlement of such claim.

5.2 Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at DDS’s option, defend DDS from and against any Losses resulting from any Third-Party Claim based on Licensee’s: (i) negligence or willful misconduct; or (ii) use of the Data in a manner not authorized by the Agreement, provided that Licensee may not settle any Third-Party Claim against DDS unless such settlement completely and forever releases DDS from all liability with respect to such Third-Party Claim or unless DDS consents to such settlement, and further provided that DDS shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. This Section 5.2 sets forth Licensee’s sole remedies and DDS’ sole liability and obligation for any actual, threatened or alleged claims that the data infringes, misappropriates or otherwise violates an intellectual property rights of any third party.

5.3 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1.2 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

5.4 Limitations of Liability. IN NO EVENT WILL DDS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER DDS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL DDS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO DDS UNDER THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $5,000.00, WHICHEVER IS LESS.

6. MISCELLANEOUS.

6.1 Entire Agreement. This T&C, together with the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this T&C and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this T&C; (ii) second, the Order Form; and (iii) third, any other documents incorporated into the T&C or the Order Form by reference.\

6.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by each Party from time to time in accordance with this Section). The Parties shall deliver Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) to the email address set forth in the Order Form or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

6.3 Force Majeure. In no event shall DDS be liable to Licensee or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond DDS’s reasonable control, including, without limitation, the following force majeure events: (i) acts of God; (ii) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) and (vi) national or regional emergency; and (ix) other events beyond the reasonable control of the DDS.

6.4 Amendment and Modification; Waiver. No amendment to or modification of this T&C and Order Form is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this T&C and Order Form, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

6.5 Severability. If any provision of this T&C and Order Form is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this T&C and Order Form or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this T&C and Order Form so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

6.6 Governing Law; Submission to Jurisdiction. The Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

6.7 Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of DDS. Any purported assignment, transfer, or delegation in violation of this Section 6.7 is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

6.8 Export Regulation. The Data may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Data to, or make the Data accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Data available outside the U.S.

6.9. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this T&C and the Order Form shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.