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TERMS OF SERVICE
VISITORTRACK

NetFactor.com solutions, including VisitorTrackSM website application, Integrations, APIs for IP Intelligence & Visitor Identification and related services (individually and collectively referred to hereinafter as “VisitorTrack”) are products of Bombora, Inc., a Delaware corporation (“Bombora”). You (“Customer”) agree to the terms and conditions as follows (“Agreement”):

1.  Service.  This Agreement governs the services provided by Bombora to Customer which allows Customer access to VisitorTrack as set forth in one or more order details agreed to under the terms of this Agreement (“Service”). For avoidance of doubt, all data provided to Customer, whether tangible or intangible, shall be considered Data hereunder and is part of the Service.

2.  Order.  Customer has executed one or more order forms, sometimes referred to as the Order Details, wherein the Services and Term are more fully described which are incorporated by reference herein and shall be sent to Customer via email upon acceptance (each, an “Order Form”). The Effective Date of this Agreement shall be the date when Customer accepts the Terms of Service.

3.  Tags; Data Collection.  Customer understands and agrees that VisitorTrack involves the placement of certain lines of HTML, JavaScript, software files, scripts or other code on Customer’s website(s) (“Tag”). Customer agrees to place a Bombora tag on Customer’s web properties to collect data including without limitation data from Customer’s users’ devices or browsers (“Intent Data”), Customer grants to Bombora, a worldwide, non-exclusive, transferable, sublicensable right and license to use the Intent Data in delivering any lawful services that it offers and Bombora shall not use the Intent Data in any manner that identifies an individual user or Customer as the source of the Intent Data. Intent Data may include, as applicable, anonymous information regarding a user’s browser, device or operating system, IP address, or hashed values created from user email addresses, with each of the above including any data that Bombora in its discretion may add or append to it.

4.  Customer Responsibilities:

a. Install Tag. It is Customer’s responsibility to install the Tag in accordance with the directions of Bombora and to remove the Tag at the end of the Term. Bombora shall collect Intent Data as long as the Tag is deployed on Customer’s website. Customer’s failure to install the Tag will result in Bombora’s inability to provide the Services but shall not relieve Customer of its obligations to pay for the Services during the same time.

b. Maintain User Account. It is Customers responsibility to set up, maintain and update all Customer’s user accounts. Customer certifies, represents and warrants that the information provided therein is true, accurate, complete, and current. Customer shall keep user information complete and up-to-date at all times. Failure to maintain Customer user account information may cause Client’s access to the Services to be interrupted, suspended, or terminated. Customer is responsible for monitoring all such user accounts and notifying Bombora immediately of any unauthorized use or breach of security of any user password(s).

c. Full Access Records. Customer understands that any purchase of Full Access Records (“FAR”) includes a monthly allotment of FARs which expire each month. FARs provide additional information on companies. Customer will receive the agreed upon quantity of “Full Access Records” each calendar month. All unused FARs expire at the end of the calendar month. FARs do not carryover, have no monetary value and are not redeemable nor refundable. Upon termination of the Agreement, access to previously downloaded FAR data shall terminate. Bombora does not warrant that FAR contact information is accurate and Bombora is not responsible for incomplete or inaccurate information as set forth in the Disclaimer section below.

d. Use of Information:

i. Upon request, Customer shall provide Bombora with a statement of its intended uses and practices for the data supplied through VisitorTrack.

ii. Customer warrants that their use of the Services shall be conducted in an ethical, lawful manner, compliant with fair marketing practices and applicable data protection laws, for its internal use only.

iii. Customer shall not access the Services for any purposes or in any manner that is illegal or improper, including, without limitation, the following:

1. For any purpose, activity or in any manner that is criminal, illegal or actionable;

2. In violation of any local, state, national or international laws, regulations or conventions;

3. To illegally ‘spam’ anyone or to sell, give, make available or otherwise distribute information in violation of the CAN-SPAM Act, https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business;

4. For unethical marketing activities;

5. To associate, attribute, collect, store, distribute or otherwise process any non-business information related to anyone;

6. To communicate with anyone using language or in any manner that is sexually explicit, profane, pornographic, immoral, obscene, vulgar, offensive, violent, dangerous, harmful, threatening, abusive, harassing, hateful, discriminatory, or racially, ethnically or otherwise objectionable;

7. To enhance, verify, supplement, append, confirm, or modify any compilation of information that is thereinafter distributed in any manner or form for unintended use to a third-party;

8. In connection with any individual credit, employment, or insurance decision;

9. To disclose or solicit the private, non-business, information of any person;

10. For sale, re-sale, sub-license, commercial use, or redistribution of any kind, without Bombora’s express, prior consent.

5.  License.  Bombora hereby grants to Customer, subject to the terms conditions set forth herein, a worldwide, non-exclusive, non-transferable, term-based, non-sublicensable right and license to use the Service for Customer’s business purposes, solely during the Term. Bombora reserves all rights, title, and interest in and to the Service and Data, including all related intellectual property rights, subject to the limited rights expressly granted hereunder. Unless otherwise explicitly set forth in an Order Form, Customer may use the Services solely for its own purposes, and may not sublicense, resell, or create any other product or service from the Service.

6.  Restrictions & Anonymization.

a. Customer shall not reverse engineer or otherwise attempt to derive personally identifiable information, or the identity of individuals, from Service. Customer may employ the Service to match non-readable, de-identified or hashed data values to one another solely to employ data attributes (such as demographic or interest-based data) about a user.

b. Customer will use the Service for its own purposes only as contemplated by this Agreement and will not (i) use the Service in violation of or beyond the license granted herein, or otherwise in any manner that violates any applicable local, state, provincial, domestic and/or international laws, rules, and regulations; (ii) permit any third party to directly access the Service or otherwise sell, rent, license, provide, or distribute the Service unless explicitly described in Order Form; or (iii) create derivative or modeled works from the Service, or otherwise reverse engineer, disaggregate or access the Service for any reason including without limitation to (1) build a competitive product or Service, or any other product or Service that provides similar or equivalent functionality to the Service, (2) build a product using ideas, features, functions or graphics of the Service, or (3) copy any ideas, features, functions or graphics of the Service.

7.  Suspension.  In the event of any breach of the Agreement by Customer and without limiting Bombora’s other rights and remedies, Bombora may immediately suspend Customer’s access to the Service. Suspension shall not waive Customer’s payment obligations during the term of suspension.

8.  Payments.  Customer will pay Fees in accordance with the payment schedule in the Order Form. Customer’s obligation to pay Fees is non-cancellable and Fees are non-refundable. All payments are due immediately and shall be deemed delinquent after 30 days. Delinquent payments shall bear interest at the rate of one-and-one half percent per month (or the highest legal rate, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorney fees) incurred by Bombora in collecting such delinquent amounts. All of the Services may be suspended or terminated for breach if Customer is delinquent on payments for any Service.

9.  Taxes.  All Services are purchased exclusive of taxes, where applicable. Customer is responsible for any sales, use or VAT taxes (“Taxes”) and Customer will pay Bombora for the Services without any reduction for Taxes. If Bombora is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Bombora with a timely and valid exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Bombora, Customer must provide Bombora with an official tax receipt or other appropriate documentation to support such withholding.

10.  Audit Right.  Bombora, or its third party representative, may, upon reasonable advance written notice, audit Customer’s compliance with its obligations hereunder. Audits shall occur during Customer’s normal business hours and be conducted in a manner so as to not unreasonably interfere with Customer’s business or operations. If the audit demonstrates Customer is in material violation of its obligations, then, in addition to other remedies available to Bombora, Customer shall reimburse Bombora promptly for the reasonable costs and expenses incurred in connection with such audit.

11.  Ownership.  As between the Parties, Bombora alone owns all right, title and interest, including all related intellectual property rights, in and to (a) the Service (including the Data), and (b) the Bombora name, logo, and product names associated with the Service (collectively, the “Bombora Property”). Except as expressly set forth herein, Customer acquires no rights in the Bombora Property or the Service.

12.  Representations and Warranties.  Customer represents and warrants (a) the individual executing this Agreement has authority to enter in to this Agreement, (b) Customer will operate in accordance with all applicable laws and regulations, including without limitation privacy policies and applicable privacy and data security laws and regulations and with respect to the use, collection and dissemination of Data and (c) Customer holds the rights necessary to perform its obligations hereunder.

13.  Privacy.  Customer shall comply with the terms and conditions of Bombora’s Privacy Policy http://bombora.com/Privacy. Customer shall not use the Data in a manner which violates any relevant Privacy protections, including without limitation statutes, regulations, and Bombora Privacy Policy, as it may be updated from time to time. In the event Customer provides Bombora with any data other than collected in the Tag or appends any data to the Services, Customer shall comply with the terms and conditions of the Data Protection Addendum http://bit.ly/bommie-DPA-June-2018 and Model Clauses http://bit.ly/bommie-C2P-Model-Clauses-June-2018.

14.  Confidentiality.  During and after the Term, neither party shall use, disclose or permit any person access to any Confidential Information of the other party, except as reasonably required in connection with its performance hereunder and as required by law. Confidential Information shall not include information that is in the public domain, or that is developed independently by either party. “Confidential Information” means the Data and all data or information of either Bombora or Customer that is of value to such party and is not generally known to third parties, including the contents of this Agreement and any Order Forms, exhibits, schedules or other attachments hereto.

15.  Indemnification.

a. Bombora Indemnified Parties.  Customer shall defend, indemnify and hold harmless Bombora and its current and former officers, directors, employees, agents, successors and assigns (collectively, the “BOMBORA Indemnified Parties”) from and against any and all third party claims, damages and expenses, including reasonable legal fees, incurred directly or indirectly by a BOMBORA Indemnified Party, that arise out of or relate to (a) Customer’s breach of the Agreement or (b) Customer’s use of the Service beyond the permissible uses under this Agreement.

b. Customer Indemnified Parties.  Bombora shall defend, indemnify and hold harmless Customer, its affiliates, and its current and former officers, directors, employees, agents, successors and assigns (collectively, the “Customer Indemnified Parties”) from and against any and all third party claims, damages and expenses, including legal fees, incurred directly or indirectly by a Customer Indemnified Party, that use of the Services violates the intellectual property rights of the third party.

c. Requirements for Indemnity.  Customer will not settle any action without first obtaining the approval and consent to such settlement from Bombora, which approval shall not be unreasonably withheld, except a Customer may settle or defend any claim so long as it unconditionally releases the other Bombora of all liability.

16.  Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTIES OF ANY KIND AND BOMBORA DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WIHTOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BOMBORA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, OR COMPLETENESS OF THE SERVICE. BOMBORA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) THE SERVICE WILL MEET COMPANY REQUIREMENTS OR EXPECTATIONS.

17.  Term and Termination.

a. Initial Term.  The term of this Agreement shall begin on the Effective Date and continue so long as an Order Form is effective (“Initial Term”). At the end of the Initial Term (“End Date”), this Agreement shall automatically renew for consecutive one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides the other party with notice of termination at least thirty (30) days, and no more than sixty (60) days, before the End Date.

b. Renewal Term.  During a Renewal Term, either Party may terminate the Agreement for their convenience by providing the other Party with thirty (30) days’ notice.

c. Termination.  In the event Customer terminates for convenience, Customer understands they shall not receive a refund for any paid but unused portion of the Services. In no event will termination relieve Customer of obligations to pay any fees payable to Bombora for the period prior to the effective date of termination. Final billings shall be determined based upon the later of 10 calendar days from the written notice of termination or upon conclusion of the next monthly cycle billing date.

d. Effect of Termination.  Upon any termination of this Agreement: (a) all licenses and other rights granted to Customer shall terminate immediately except post-termination licenses expressly set forth in an Order Form and (b) Customer shall pay to Bombora, within ten (10) days of such termination, all fees owed to Bombora hereunder for Service rendered prior to such termination.

e. Survival.  Upon termination of the Agreement, Bombora shall retain the right to any and all Data provided to or accessed from the Service during the Term. Customer’s access to data associated with Customer account is disabled upon termination of the Agreement. In addition, the following Sections of the Agreement; Restrictions, Anonymization, Payments, Audit, Ownership, Confidentiality, Indemnification, Disclaimer, Limitation of Liability, Effect of Termination and General shall survive any termination or expiration of this Agreement.

18.  General.

a. Entire Agreement.  This Agreement incorporates or supersedes all prior discussions and agreements between the parties, and constitutes the entire Agreement between the parties relating to the subject matter hereof. Section headings are for convenient reference and shall not give meaning to the provisions following such headings.

b. Governing Law and Choice of Forum.  This Agreement shall be governed by the laws of the State of New York without reference or deference to conflict of law principles. The exclusive venue and jurisdiction for any action relating to this Agreement shall be a federal or state court in the county and state of New York.

c. No Waiver.  The waiver of any right or election of any remedy in one instance shall not affect any rights or remedies in another instance. A waiver shall be effective only if made in writing and signed by an authorized representative of the party making such waiver.

d. Notices.  All notices hereunder shall be sent by email to support@netfactor.com. Customer’s failure to produce a copy of a sent email shall deem any purported notice invalid. Alternatively, termination notices may be mailed to Bombora, Inc., 257 Park Avenue South, 6th Floor, New York, New York 10010 by certified, registered or such other mail delivery which provides proof of delivery confirmation. Such notices shall be deemed given on the date of receipt of said notice.

e. No Assignment.  Neither party may transfer or assign this Agreement or its rights hereunder to any person or entity, in whole or in part, without the prior written consent of the other party. Provided that Bombora may assign this Agreement without the consent of Customer pursuant to an acquisition of Bombora (whether by merger, stock sale or asset sale), to a successor-in-interest.

f. Modification.  Bombora reserves the right to amend this Agreement from time to time in its sole discretion. The current Terms of Service is available at https://netfactor.com/tos/. Customer may not amend this Agreement without the express written consent of Bombora.

g. Independent Contractors.  No joint venture, partnership, employment, or agency relationship exists between Customer and Bombora as a result of this Agreement or use of the Service.

h. Force Majeure.  Bombora’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event that Bombora is not able to provide Service during such event, during such period Customer’s obligation to pay for the Service shall be suspended.

i. No Third Party Beneficiaries.  This Agreement is solely by and for the benefit of the parties that are signatories to it. There are no third party beneficiaries to this Agreement, other than a Third Party Contractor as referred to above that processes and implements the Service.

j. Counterpart Signatures.  This Agreement may be executed in multiple counterparts and collected in ink or via valid electronic signature.

Customer executed this Agreement by accepting the same on netfactor.com during the order process and confirming the order details.