Data License and Services Agreement

This Data License and Services Agreement (“Agreement”) is made by and between the ordering party (“Licensee”) identified in an order form (“Order Form”) that incorporates this Agreement by reference and/or through a URL link embedded in such Order Form and Harte Hanks Direct, Inc.  (“Harte Hanks” OR “Licensor”) and becomes effective as of the date the applicable Order Form that incorporates this Agreement by reference is fully executed by Licensee and Harte Hanks (“Effective Date”). The term of this Agreement shall commence upon the Effective Date and continue thereafter for the Term of the applicable Order Form that incorporates this Agreement.

WHEREAS, Licensor and/or its third data source suppliers have each compiled data into their respective proprietary databases for its general business purposes which includes without limitation making data from those databases available for licensing to its general customer base.

WHEREAS, Licensor desires to obtain Services from Harte Hanks that may results in the provision of a license to specific data sourced from the proprietary database(s) of Harte Hanks’ and/or its third party data source suppliers for use in Licensee’s business as may be permitted under this Agreement.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions. For purposes of the Agreement, the following definitions apply.
    1. “Applicable Law” means all national, foreign, state or local laws, regulations, ordinances, or other government standards relating to the data protection, privacy, confidentiality or security of the applicable Ordered Data, which may include, without limitation, those laws (a) imposing minimum security requirements; (b) requiring the secure disposal of Ordered Data; (c) requiring notice to Data Subjects (as that term is defined under applicable law) and/or regulators when Ordered Data was or may have been affected by a Privacy Breach; or (d) governing general data protection, medical secrecy, electronic communications, digital tracking or data retention (e). specific to the jurisdictions represented within the scope of the Ordered Data or affected by the use or processing of Ordered Data (f) specific to Ordered Data and the rights and obligations imposed upon those processing Ordered Data and/or specific to information privacy, data protection, confidentiality, integrity, availability and similar information security standards or principles, (g) specific to the lifecycle of the Ordered Data and specific to the acquisition, collection, import, export, transmission, sharing, access, storage, retention, return, destruction of information, (h) specific to the use of Ordered Data by any party and lawful business activities, fair trade and information processing practices, consumer protection, as those laws govern marketing or advertising activities and communications.
    2. “Data Subject” has the meaning given by Applicable Law.
    3. “DataView Data” shall mean data, from Harte Hanks’ proprietary DataView Database, and licensed to Licensee under the applicable Order Form and acquired by Harte Hanks from multiple Third Party Licensors.
    4. “External Data” shall mean any third party sourced data, material or information licensed or purchased by Licensee, or for the benefit of Licensee either directly or through Harte Hanks from the Third-Party Licensor(s) who have been identified in the applicable Order Form.
    5. “Fees” shall mean the cost or fees stated in the applicable Order Form for the provision of Services and/or Ordered Data payable by Licensee to Harte Hanks.
    6. “License Term” and/or “Usage Term” shall mean the period of time set out in an Order Form during which Licensee can use the Ordered Data for the Permitted Use.
    7. “Ordered Data” shall mean individually or collectively the DataView Data and/or the External Data listed in the applicable Order Form which may include Personal Data.
    8. “Permitted Use” means Licensee’s authorized use of the Ordered Data in compliance with the terms set forth in the applicable Order Form and this Agreement.
    9. “Personal Data” has the meaning given by Applicable Law and may include personal information (regardless of the medium in which it is contained), whether alone or in combination with other available information that directly or indirectly identifies a Data Subject.
    10. “Process”, “Processed” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automated means, including but not limited to the collection, recording, organization, structuring, alteration, use, access, disclosure, copying, transfer, storage, deletion, combination, restriction, adaptation, retrieval, consultation, destruction, anonymization, disposal, or other use of Personal Data.
    11. “Security Incident” means any actual or suspected theft, unauthorized access, disclosure, change or unauthorized use of Ordered Data.
    12. “Services” means those services to be provided by Harte Hanks to Licensee as expressly agreed and set forth in an Order Form.
    13. “Term” has the meaning given to it in Section 9 of this Agreement.
    14. “Third Party Licensors” shall mean those third-party data providers and sources of the Ordered Data provided and/or licensed to Harte Hanks under a separate agreement between Harte Hanks and the applicable third-party data provider and identified in the applicable Order Form.
  1. Services / Ordered Data / Other Matters
  2. For each engagement under this Agreement, the Services and/or Ordered Data to be provided by Harte Hanks to Licensee will be set forth in a separate Order Form.  Each Order Form shall have binding legal effect upon execution and delivery thereof by all required parties thereto and each such Order Form shall be deemed to be made in accordance with and pursuant to this Agreement.  The affiliates and subsidiaries of either party may also enter into Order Form(s) pursuant to the terms and conditions of this Agreement during the term of this Agreement.  As used herein, the terms “Licensee”, “Harte Hanks”, the “parties” and similar terms shall also include each party’s respective affiliates and subsidiaries who enter into one or more Order Forms to this Agreement.  Each Order Form shall constitute a supplement to this Agreement and shall be deemed to incorporate all of the terms and conditions of this Agreement, including its recitals.  The terms and conditions of this Agreement shall control over any conflicting terms and conditions in an Order Form, except to the extent that an Order Form specifically states that the Order Form (or certain provisions within the Order Form) shall prevail in the event of any such conflict.
  3. Ordered Data
  • Each Order Form will be subject to the terms set forth herein and shall identify the parties entering into the Order Form, a description of the Services, Ordered Data and related License Term and related deliverables being provided, the stated objectives and/or such other terms to which Ordered Data is made available to Licensee, the Permissive Use of Ordered Data, and any other applicable processing assumptions with respect to the Ordered Data as well as the Licensor’s Fees.  The License Term as it applies to  each Order Form shall be as set forth in the applicable Order Form.
  • Licensee agrees to be bound by, and expressly acknowledges, that its access and use of Ordered Data for the Permitted Use is subject to and governed by the terms and conditions set forth within this Agreement and the applicable Order Form.
  • Licensee is solely responsible for ensuring its own compliance with Applicable Law in connection with its access and use of the Ordered Data including without limitation in exercising its Permissive Use of such Ordered Data.
  • Harte Hanks makes Ordered Data available to Licensee for the express purpose of allowing Licensee to license, process and use Ordered Data in accordance with the Permitted Use in pursuit of Licensee’s legitimate business, marketing, and advertising objectives in balance with the rights granted to individuals under Applicable Law. Harte Hanks implements reasonable safeguards and controls to appropriately balance these legitimate interests with the rights and freedoms granted to individuals. Any individual who exercises such rights and freedoms “over-ride” Harte Hanks’ legitimate interests and any information related to such individuals is thereafter removed by Harte Hanks from Ordered Data prior to its supply to Licensee. Licensee must establish its own legal basis to process Ordered Data if and to the extent required under Applicable Law and in pursuit of the business objectives and Permitted Use purposes specified in the Order Form. Unless permitted under Applicable Law, Licensee may not rely upon “consent” as the legal basis to process Ordered Data.
  1. Ordered Data License Grant / Usage Terms and Restrictions.

1)Usage Term. Ordered Data ordered from Harte Hanks shall only be used by the Licensee for the License Term specified in the applicable Order Form and if not specified in the Order Form for a period of twelve (12) month from the date the Ordered Data is delivered to Licensee.

2) License Grant. Subject to and conditioned on Licensee’s payment of Fees and its compliance with all other terms and conditions set forth in the Order Form and this Agreement,  the Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 10(g)) license to access and use the Ordered Data for the Permitted Use during the License Term.

  • Ordered Data Use Restrictions. Licensee shall only use the Ordered Data for the Permitted Use and in accordance with the terms of this Agreement and the applicable Order Form and shall not disclose, release, distribute, or deliver the Ordered Data, or any portion thereof, to any third party without Licensor’s prior written consent. Any purpose or use not specifically authorized herein or in the applicable Order Form is prohibited. Without limiting the foregoing, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Ordered Data, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Ordered Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Ordered Data or methods used to compile the Ordered Data, in whole or in part; (iv) remove any proprietary notices included within the Ordered Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the Ordered Data; or (vi) use the Ordered 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.
  • Seeded Data. Licensee acknowledges that Ordered Data may be seeded to detect unauthorized use or duplication thereof. Licensee will not remove seeds from the Ordered Data. In addition to any other rights or remedies available to Harte Hanks at law or in equity arising from a breach by Licensee of this Agreement, Licensee agrees to promptly pay Harte Hanks as a liquidated damage and not as a penalty an amount equal to full retail value of the license fee that Licensee would have paid if it had properly licensed the applicable Ordered Data that was accessed and used in an unauthorized manner and whether or not such access and use was  attributable to the intentional or unintentional acts or omissions of Licensee in violation of the Order Form and/or this Agreement.
  • Reservation of Rights. As between the parties, Licensor on its own behalf and on behalf of its Third Party Licensors reserves all rights in and to the Ordered Data that are not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement or any Order Form issued thereunder 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 Ordered Data.
  • Licensor shall deliver the Services and Ordered Data to Licensee in the manner mutually agreed and set forth in the Order Form.
  • Security of Ordered Data. Licensee shall hold Ordered Data in strict confidence and implement reasonable security controls to safeguard against unauthorized access, disclosure, or changes. Licensee shall use the same degree of care to protect and safeguard the Ordered Data, as Licensee employs to protect and safeguard its own confidential and proprietary information, but in no event shall Licensee employ less than a reasonable degree of care. Licensee will notify Harte Hanks in writing without undue delay (and in any event within twenty-four (24) hours or one business day) whenever Licensee reasonably suspects that there has been a Security Incident, Licensee’s notification shall include to the extent known the nature of the Security Incident, the affected individuals and any other details related to the Security Incident.   Licensee will, at its own expense, take all necessary steps to (a) investigate the Security Incident; (b) eliminate or contain the exposure of the affected Ordered Data (including Personal Data incorporated therein) that may have been impacted by the Security Incident; (c) keep Harte Hanks fully informed of the status of the Security Incident and all related matters.
  1. Fees and Payment.
    1. Fees. Licensee shall pay Harte Hanks the Fees as set forth in the applicable Order Form to this Agreement, without offset or deduction. Unless otherwise agreed in an Order Form, Licensee shall make all payments hereunder in US dollars. Unless otherwise provided in an Order Form, rates shall be valid for a period of one (1) year from the effective date of the applicable Order Form. Thereafter, prices are subject to change. Unless advance or periodic payments are provided for in an Order Form, charges shall be invoiced upon delivery of the Ordered Data and/or performance of the Services.  Invoices shall be payable within thirty (30) days of receipt.  Past due invoices will accrue interest at the rate of 1.5% per month beginning with the date due and continuing until paid. Purchase orders or similar documents issued by Licensee relating to this Agreement or an Order Form are for Licensee’s internal use only and shall not be deemed to modify, amend or in any way affect the terms and conditions of this Agreement or an Order Form. If payments are not made within ten (10) days from the date due, Harte Hanks may, at its option and without limiting any other rights or remedies that may be available to Harte Hanks, including but not limited to termination of this Agreement and/or the applicable Order Form for cause as provided in Section 9(b)(i), suspend providing Services to Licensee until such time as Licensee’s account is current.  In addition, if payments are not made when due, Licensee will be responsible for all costs incurred by Harte Hanks in collecting such past due amounts, including attorney’s fees.  All shipping and/or delivery charges hereunder shall be F.O.B. Harte Hanks.
    2. Taxes. All Fees and other amounts payable by Licensee under the applicable Order Form to this 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 Licensor’s income.
    3. Auditing Rights and Required Records. Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement and/or the applicable Order Form with respect to matters necessary for accurately determining amounts due hereunder, and for determining Licensee’s compliance with the terms of the Order Form and this Agreement, including without limitation Licensee’s obligations under Sections 2(b) and 2(c) of this Agreement. Licensor may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Licensee has underpaid Licensor with respect to any amounts due and payable during the Term, Licensee shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 3(a).
  2. Confidential Information Privacy and Security.
    1. Confidentiality. The parties acknowledge that they may receive or be provided access to confidential, proprietary and/or trade secret information (collectively “Confidential Information”) from the other party in connection with this Agreement. The parties agree to safeguard and protect such Confidential Information and not to disclose it to third parties without the prior written approval of the disclosing party.

Confidential Information does not include information that (a) is or becomes available to the public without breach of this Agreement, (b) is lawfully obtained from a source that is not, to the best knowledge of the recipient, under an obligation of confidentiality to the disclosing party, (c) is in the possession of the recipient in written or other recorded form at the time of disclosure, (d) is disclosed on a non-confidential basis to a third party by or with the permission of the disclosing party, or (e) is independently developed by or on behalf of the recipient by individuals who have not received Confidential Information. The foregoing exceptions will not prevent the recipient from complying with any court order or other legal requirement that compels disclosure of any Confidential Information.  If the recipient learns of such a legal requirement and to the extent permitted by law, it will promptly notify the disclosing party and cooperate with the disclosing party, at the disclosing party’s expense, if the disclosing party elects to exercise its right to protect its Confidential Information before any tribunal or governmental agency.  Disclosures made in accordance with this paragraph will not change the character of the disclosed information as confidential and/or proprietary information for the purposes of this Agreement.

The disclosing party represents and warrants that the disclosure and authorization to process Confidential Information by the recipient party complies with applicable law and/or does not violate the rights of a third party. At the discretion of the disclosing party, the recipient party agrees to return or destroy such Confidential Information upon request or termination of this Agreement.

This Section 4(A) shall survive expiration or termination of this Agreement.

B    Personally Identifiable Information. For purposes of this Agreement, the parties agree that personally identifiable information (“PII Data”) shall mean a special category of Confidential Information. PII Data is any information which relates to, identifies, locates in real time or enables a direct communication with an individual; often defined as “Personal Data” or “Personal Information”. At all times, the parties agree that PII Data shall be collected, used, amended, suppressed, deleted and shared in accordance with applicable law and individual’s rights and choices regarding the processing of such information, the use of such information for advertising and direct marketing purposes and the use of such information for the provision of lawful marketing communications. At all times, the Party disclosing PII Data shall be responsible for ensuring that such information was lawfully obtained and then only shared with the other party in a limited fashion as needed for the provision of services and in accordance with applicable laws, rules, regulations, generally accepted privacy and security standards and individual’s rights and choices. The disclosing party’s PII Data shall be processed by the recipient solely in accordance with the written instructions outlined in the Order Form; addressing as applicable the subject matter, nature, purpose, categories of data subjects and personal data involved and reflective of the applicable business arrangements made between the parties with respect to the establishment, provision and management of individual’s rights and all applicable laws, rules and regulations. The parties agree to immediately communicate, and reasonably seek to cooperate and resolve, all requests and similar efforts related to: (i) individuals exercising their rights of access, change or limit the processing or use of their PII Data, (ii) regulatory inquiries or complaints (iii) privacy, security and compliance impact assessments, audits and similar measures and (iv) other events representing a breach of applicable law, regulation, an individual’s information privacy or security right, an error or omission specific to the provision of marketing communication or other similar events related to privacy, security, marketing, regulatory or legal compliance obligation. The parties agree that should an error or omission result in a breach of a privacy, security or compliance obligation, the offending party may be deemed as a Data Controller under applicable law and for purposes of determining liability, compensating affected individuals, the imposition of administrative fines and the assessment of such fines and penalties under applicable law.

  1. Sensitive Personal Information. For purposes of this Agreement, the parties agree that sensitive personal information (“SPI Data”) shall mean a special category of Confidential and PII Data; whether contained in an electronic or physical format. As a general matter, the parties agree that SPI Data is information related to a minor child, the health or medical treatment of an individual, information regarding an individual’s financial / credit profile, information allowing for the territorial tracking of an individual in real-time, and other regulated personal information which, if lost, stolen or processed in unauthorized manner, may result in identity theft, infringe upon an individual’s right to information privacy and security or violates a privacy, security or data breach law or regulation. The Parties acknowledge SPI Data may not be used for advertising or marketing purposes without first obtaining the expressed consent from individuals with whom such information relates as may be required under applicable law.
  2. E. Protected Health Information. To the extent the Services involve Harte Hanks’ processing or access of any protected health information as defined in U.S. 45 CFR §160.103 (“PHI”) on behalf of the Licensee, the terms of the Business Associate Addendum (“BAA”) set forth at https://hartehanks.co.uk/Business_Associate_Agreement/ shall apply to such Services and is hereby incorporated into this Agreement.
  3. Privacy. Each party shall be responsible for designating a Data Protection Officer, or functionally equivalent role, responsible for facilitating their respective privacy and data protection compliance obligations. Licensee is responsible for completing applicable, privacy and security impact assessments to ensure privacy by design and default and any prior consultations with, or approvals as may be required from, relevant privacy authorities related to PII Data provided to Harte Hanks for the provision of Services. Licensee shall further ensure that PII Data is provided to Harte Hanks in compliance with Licensee’s privacy policy or similar written notice provided, or made readily-available, to individuals with whom such information relates and that such policy or notice is written in plain language and reasonably transparent of the processing of such data by Harte Hanks. With respect to any PII Data within Licensee Content provided to Harte Hanks for the provision of Services, Licensee is solely responsible for responding to individual’s requests to access, obtain copies, change, delete, restrict or suspend the processing of such data and similar requests applicable to the processing by, and sharing of such data with Harte Hanks. Licensee shall notify Harte Hanks in a timely manner of any changes, choices or limitations imposed by individuals applicable to the PII Data shared with Harte Hanks for the provision of Services. Licensee shall implement reasonable measures to ensure and maintain the quality of PII Data provided to Harte Hanks for the provision of Services over time; and shall reasonably provide Harte Hanks with updates to, or instructions to delete, PII Data Licensee deems inaccurate or erroneous. The Parties agree to establish, maintain, and reasonably make available to the other party upon request business records designed to evidence their respective efforts to ensure the lawful processing of PII Data, use of such data for marketing purposes and the provision of marketing communications as pertinent to Services. The parties agree that material changes to PII Data processing operations, including the replacement of any previously-approved third parties, shall be appropriately discussed, documented and agreed in advance under the change procedures as agreed to between the parties and shall at all time immediately inform the other party upon becoming aware of any processing or work instructions contrary to the rule of law.
  4. Choice, Processing, Advertising and Marketing Communications. Unless otherwise agreed to by Harte Hanks in the Order Form, Licensee is solely responsible for obtaining, and subsequently complying with all permissions applicable to the PII Data provided to or processed by Harte Hanks for the provision of Services, including, but not limited to, the processing of such data on behalf of Licensee, including use by Harte Hanks for Licensee’s direct marketing, automated decision making or profiling purposes, the presentation of digital advertisements and the delivery of direct marketing communications. Licensee represents and warrants it has obtained such permissions and performed any suppression activities required by applicable law before providing PII Data to Harte Hanks for the provision of Services; and covenants to provide Harte Hanks with timely updates to such PII Data or choices over time to ensure the provision of Services comply with applicable law and individual’s choices. Licensee agrees that Harte Hanks may, in good-faith and only on a reasonable basis, request Licensee to produce evidence of such permissions and suppression efforts as pertinent to the Services. For Licensee Content provided to Harte Hanks for the expressed purpose of processing the PII Data related, or delivering an unsolicited marketing communication, to an individual who has not made an inquiry of, transacted with or does not have any prior relationship with Licensee), and as further agreed to in writing as set forth in the Order Form, Licensee hereby acknowledges and agrees that Harte Hanks, as a publicly-traded, marketing services company in good standing and independent compliance obligations related to the Services provided, may perform additional suppression activities upon such data to honor choices expressed by individuals directly with Harte Hanks. At all times, Harte Hanks represents, warrants and covenants to provide Licensee with any expressed inquiries, complaints, preferences and choices received from individuals on Licensee’s behalf throughout the provision of Services in a timeframe and manner relevant to the Services as agreed to between the parties in the Order Form.

H    Information Security Management Program. Each party is responsible for implementing a written information security plan designed to reasonably address privacy and security risks applicable to their handling of Confidential Information, including PII Data and SPI Data. If a party is provided access to the other party’s electronic systems, the accessing party will ensure that only authorized, named users are permitted access and shall secure access to any passwords provided by the other party. An accessing party shall only use the system as authorized and shall follow the other party’s written policies and rules for which it is made aware. An accessing party shall promptly notify the other party regarding any status changes for its authorized users (e.g. termination of employment or change of access level) or upon becoming aware of any unauthorized access, disclosure or use of systems or passwords. The parties agree to work together in order to mitigate, to the extent practical, and remediate any harmful effect resulting from their unauthorized distribution of passwords, access or use of the other party’s systems.

  1. Transfers of SPI Data and PII Data. Neither party shall transmit Confidential Information, including PII Data or SPI Data to the other party that is not strictly required for the performance of Services; the disclosing party shall bear sole responsibility for all liabilities arising from the provision of unnecessary data provided to the other. Each party shall ensure, at its sole expense, that its systems are able to receive Confidential Information, PII Data and SPI Data from the other party in the mutually-agreed manner. The parties agree that SPI Data and PII Data shall not be sent to, or accessed by, an offshore entity or location unless explicitly authorized by the disclosing party. The parties agree that (i) unprotected and unscheduled transmissions of SPI Data and PII Data are prohibited, and (ii) that physical transmissions of SPI Data and PII Data must be encrypted prior to delivery and (iii) to utilize a courier system that provides tracking capabilities throughout the delivery process and requires signature from the recipient upon delivery. The parties agree to immediately mitigate and resolve unsuccessful transmissions of SPI Data.

The parties agree to transmit SPI Data lawfully and securely and at a minimum:

  • Electronic SPI Data must be secured at the file (or field) level prior to transmission.
  • Electronic and/or any other transmissions of SPI Data must utilize an encrypted, or similarly protected, transmission mechanism and, as applicable, must not reside on a transfer server for longer than 4 hours. The parties agree that:
  • Transmissions of SPI Data via e-mail are expressly prohibited.

The parties agree to transmit PII Data lawfully and securely and at a minimum.

  • Electronic PII Data must be encrypted at the file (or field) level prior to being delivered through an insecure delivery mechanism or
  • Electronic and/or other transfers of PII Data must be delivered utilizing an encrypted, or similarly protected, transmission mechanism.
  1. EU Model Clauses. To the extent Services include the processing or transmission of Licensee’s PII Data related to the profiling or monitoring the behavior of or offering products or services to individuals located in the European Economic Area (EEA), the parties agree to comply with their respective obligations set forth in Regulation (EU) 2016/679 or “GDPR.” Harte Hanks agrees to process such Licensee PII Data, as a Data Processor, in accordance with the Standard Contractual Clauses, located at https://www.hartehanks.com/standard-contractual-clauses/). The parties further agree to flow through their respective compliance obligations onto their processors, sub-processors and other third parties. In the event of the conflict between the terms of this Agreement and the Standard Contractual Clauses, the terms of Standard Contractual Clauses shall prevail to extent necessary to resolve the conflict.
  2. Intellectual Property Ownership.
  3. Ordered Data. Licensee acknowledges that, as between Licensee and Licensor, Licensor and its Third Party Licensors, as applicable, own all right, title, and interest, including all intellectual property rights, in and to the Ordered Data. Licensee further acknowledges that: (a) the Ordered Data is an original compilation protected by United States copyright laws; (b) Licensor and its Third Party Licensors have dedicated substantial resources to collect, manage, and compile the Ordered Data; and (c) the Ordered Data constitutes trade secrets of Licensor and its Third Party Licensors. Licensor may terminate this Agreement without advance notice to Licensee or an opportunity for Licensee to cure and without further obligation or liability. Licensee acknowledges and agrees that it will be considered a material breach by Licensee under this Agreement if Licensee contests any of Licensor’s right, title, or interest in or to the Ordered Data, including without limitation, in a judicial proceeding anywhere throughout the world. As required by Applicable Law, the Third-Party Licensor, as data owner, shall be a third-party beneficiary of the terms of this Agreement solely for the purposes of enforcing the applicable use limitations and other obligations and/or restrictions set forth herein and in the Order Form.
  4. B. Licensee Content. All of Licensee’s data, including but not limited to Licensee’s SPI Data and PII Data (whether such data is owned by Licensee or is licensed or supplied by a third party to Licensee or to Harte Hanks on Licensee’s behalf), information, materials, records, scripts, content, intellectual property, and all other tangible or intangible property of Licensee, regardless of format or medium and including, for example, text, pictures, photographs, diagrams, graphics, logos and videos of Licensee, in each case to the extent provided to Harte Hanks by Licensee or on behalf of Licensee by third parties in connection with the Services (“Licensee Content”) is and shall remain the exclusive property of Licensee.  As between the parties, Licensee shall be deemed the “Data Controller” in relation to all Licensee Content and Harte Hanks shall be deemed the “Data Processor”, as these terms are defined under applicable law.  Licensee hereby grants to Harte Hanks a nonexclusive and royalty-free license to use such Licensee Content solely in accordance with the terms of this Agreement and any applicable Order Form.  Licensee shall procure, at its own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit use of the Licensee Content by Harte Hanks as required for incorporation or use in connection with the Services.
  5. Licensee Approved Work Product.  Licensee bears sole responsibility for the final review and approval of all deliverables and/or materials provided to Licensee under an Order Form, to ensure the accuracy, legality and completeness of all information contained therein prior to the use, publication or distribution of such content by Harte Hanks in connection with the performance of Services (the “Licensee Approved Work Product”).  Licensee’s review and approval shall be conclusively presumed to have been made and given by Licensee, except and only to the extent Licensee expressly informs Harte Hanks to the contrary in writing.
  6. Limited Warranties.
  7. Services Warranty. Harte Hanks warrants that the Services provided will conform in all material respects to the specifications for the Services as set forth in each Order Form. If any Services or portion thereof furnished by Harte Hanks under this Agreement or an Order Form fail to meet the warranty set forth immediately above, Harte Hanks will at its option repair, replace or re-perform such defective Services or portion thereof at its own expense. In the event that Harte Hanks cannot adequately repair, replace or re-perform such defective Services or portion thereof, then Licensee’s sole remedy shall be the entitlement to receive a refund of any payments made by Licensee with respect to such defective Services or portion thereof. Such refund shall not exceed the fees paid by Licensee to Harte Hanks for such defective Services. To the extent that any malfunction or defect in the Services is due to any error of Licensee or failure of Licensee to perform any of its obligations under this Agreement or an Order Form, whether through negligence or otherwise, and Licensee requests Harte Hanks to perform such corrective Services, then Licensee shall pay Harte Hanks at Harte Hanks’ then current rate for all corrective Services and any related expenses.
  8. Ordered Data Limited Warranty. At the time Ordered Data is made available to Licensee, Harte Hanks warrants: (i) Ordered Data as supplied by each such Third Party Licensor was collected in accordance with Applicable Law, (ii) that it has obtained assurances from its Third Party Licensors that prior to providing the Ordered Data that each such applicable Third Party Licensor have conducted appropriate reviews and due diligence to validate Ordered Data conforms to Applicable Law as and when provided, (iii.) that Harte Hanks has all required licenses, permissions and contracts in place with its Third Party Licensors as needed to permit Harte Hanks to make the Ordered Data available to Licensee for Licensee’s Permissive Use as the same is described in the Order Form and this Agreement, (iv) that it has obtained appropriate assurances from its Third Party Licensors  that the Ordered Data as and when provided by Harte Hanks will not violate (a) the intellectual property rights of any third party, or (b)  the privacy right or right of choice granted under Applicable Law, (v) that Harte Hanks shall maintain publicly-available controls designed to facilitate rights and choices regarding the Personal Data Processed by Harte Hanks as applicable to Ordered Data, and (vii) that Harte Hanks will remove, or flag as the case may be, any information related to an individual’s  privacy right or choice to the extent the same is communicated directly to Harte Hanks after the provision of Ordered Data as applicable to Services.  These warranties are in addition to the representations and warranties expressly stated in the Order Form, if any, to which this Agreement applies solely as it pertains to the Services provided by Harte Hanks and not the Ordered Data.
  9. EXCEPT FOR THE FOREGOING LIMITED EXPRESS WARRANTIES UNDER THIS SECTION 6, THE SERVICES AND ORDERED DATA ARE PROVIDED “AS IS” AND HARTE HANKS FOR ITSELF AND ON BEHALF OF ITS THIRD PARTY LICENSORS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. HARTE HANKS FOR ITSELF AND ON BEHALF OF ITS THIRD PARTY LICENSORS MAKES NO WARRANTY OF ANY KIND THAT THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  10. Indemnification.
    1. Licensor Indemnification.
      1. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all third party claims, suits or actions (collectively “Third-Party Claim“) for: losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (collectively “Losses“)  where such Third-Party Claim alleges that Licensee’s Permitted Use of the Ordered Data in accordance with the terms of this Agreement and the applicable Order Form infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Licensee promptly notifies Licensor in writing of the Third-Party Claim, reasonably cooperates with Licensor in the defense of such Third-Party Claim at Licensor’s request and expense, and allows Licensor the sole authority to control the defense and settlement of such Third-Party Claim.
      2. If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole discretion, to (A) modify or replace any such infringing part of feature of the Ordered Data to make it non-infringing, or (B) obtain rights to continue use. If Licensor determines that none of these alternatives are reasonably available, Licensor may terminate this Agreement or the applicable Order Form, in its entirety or with respect to the affected part or feature of the Ordered Data, effective immediately on written notice to Licensee. If such termination occurs, Licensor agrees to repay a prorated portion for the Fees paid by Licensee for the period of non-use.
  • This Section 7(A) will not apply to the extent that the alleged infringement arises from (i) use of the Ordered Data in combination with data, software, hardware, equipment, or technology not provided by Licensor or (ii) Licensee’s violation of this Agreement, including but not limited to Sections 2(b) and 2(c) of this Agreement and/ or additional use restrictions contained within the applicable Order Form.
  1. Sole Remedy. THIS SECTION 7.A SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE ORDERED DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  2. Licensee Indemnification. Licensee agrees to indemnify, hold harmless, and, at Licensor’s option, defend Licensor from and against any Third Party Claim for Losses resulting from any Third-Party Claim based on Licensee’s: (i) negligence or willful misconduct; (ii) use of the Ordered Data in a manner not authorized by this Agreement or the Order Form, (iii) use of the Ordered Data contrary to Applicable Law or (iv) arising from Harte Hanks use of any Licensee Content in connection with the performance of Services; provided that Licensee may not settle any Third-Party Claim against Licensor or a Third Party Licensor unless such settlement completely and forever releases Licensor and, as applicable, the Third Party Licensor from all liability with respect to such Third-Party Claim, and unless Licensor, and as applicable the Third Party Licensor, consents to such settlement, and further provided that Licensor 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.
  1. Limitations of Liability. EXCEPT FOR ANY LIABILITY THAT CAN NOT OTHERWISE BE EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO AS IT RELATES TO INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, LOSS OF GOODWILL OR REPUTATION,USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA(COLLECTIVELY “CONSEQUENTIAL DAMAGES”) IN EACH CASE REGARDLESS OF WHETHER LICENSOR OR LICENSEE WAS ADVISED OF THE POSSIBILITY OF SUCH CONSEQUENTIAL DAMAGES OR SUCH CONSEQUENTIALDAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR ANY LIABILITY THAT CAN NOT OTHERWISE BE EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY FOR ACTUAL AND DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR ANY ORDER FORM UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE LESSER OF THE TOTAL AMOUNT PAID TO LICENSOR BY THE LICENSEE UNDER THE APPLICABLE ORDER FORM THAT GAVE RISE TO THE CLAIM FOR LIABILITY UNDFER  THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $100,000.00.
  2. Term and Termination.
    1. Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to the terms of the applicable Order Form and/or this Agreement’s express provisions, will continue in effect for the Ordered Data’s  License Term as set out in the applicable Order Form  Those provisions of this Agreement that expressly survive termination of this Agreement and/or the applicable Order Form shall so survive termination.
    2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
      1. Licensor may terminate this Agreement and/or an Order Form, effective on written notice to Licensee, if Licensee: (A) fails to pay any amount of the Fees when due under the applicable Order Form entered into hereunder, and such failure continues more than seven (7) days after Licensor’s delivery of written notice thereof; or (B) breaches any of its obligations under the Order Form and/or this Agreement including but not limited to Section 2(b) and (c) or Section 4.
      2. Without limiting Licensor’s rights as set out in Section (B)(i) above, either Party may also terminate the applicable Order Form and this Agreement, effective on written notice to the other Party, if the other Party materially breaches the applicable Order Form and/or this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  • either Party may terminate the applicable Order Form and this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
  1. Effect of Expiration or Termination. Upon expiration of the License Term as set out in each applicable Order Form, or earlier, upon termination of the applicable Order Form or this Agreement, the license granted thereunder will also terminate, and Licensee shall cease using and delete, destroy, or return all copies of the Ordered Data and certify in writing to the Licensor that the Ordered Data has been deleted or destroyed as required. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due on or before such expiration or termination or entitle Licensee to any refund.
  2. Survival. Any rights, obligations, or required performance of the parties in the Order Form and/or this 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, including without limitation the rights and obligations set forth in Sections 1, 3, 3, 0(A), 5, 7, 8, 8, 9(B,) 9(C) and 9(D).
    1. Entire Agreement. This Agreement and any Order Form(s) issued thereunder, together with any other documents incorporated herein by reference constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and the applicable Order Form 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 Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (i). first, this Agreement, and (ii) second the Order Form, and (iii) third, any other documents incorporated herein or therein by reference.
    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 provided 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), or by 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, provided that the Party giving the Notice has complied with the delivery requirements of this Section.
    3. Force Majeure. In no event shall Licensor 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 Licensor’s reasonable control, including, without limitation, the following force majeure events: (i) acts of God; (ii) flood, fire, earthquake, epidemics or such other potential disasters; (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) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; and (ix) other similar events beyond the reasonable control of the Licensor.
    4. Amendment and Modification; Waiver. Licensor may modify this Agreement from time to time and Licensor will either provide Licensee notification that updates have been made by providing a message at log in, or will update this Agreement on-line, which Licensee agrees that it will review on a regular basis.  Continued use of any Data after notification of updates are published shall constitute Licensee’s acceptance of the modified terms and conditions.  Harte Hanks may also from time to time produce updates or enhancements to the services that do not require any additional terms of use for such new service.  Licensee may begin using any such updates or enhancements upon general release by Harte Hanks. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this 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.
    5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement 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 Agreement 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. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, 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 Massachusetts.
    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 Licensor. Any purported assignment, transfer, or delegation in violation of this Section 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.
    8. Export Regulation. The Ordered Data may be subject to US 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 US.
    9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under this Agreement, including without limitation Section 4 or, in the case of Licensee, Section 2(b) and/or 2(c) 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 and, in the case of Harte Hanks it and/or its Third Party Licensors will be entitled to seek immediate 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.
    10. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

End of Agreement

Version October 2025

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