TERMS AND CONDITIONS
1. PARTIES AND SCOPE
1.1 These General Terms and Conditions and any applicable Order Acknowledgement Form (an "Order Form" and together with the General Terms and Conditions, the "Agreement") is by and between Medical Marketing Service, Inc. ("MMS", "we," "us," and "our,") and the customer signing the Order Form ("you" and "your.") This Agreement shall be effective as of the date on the applicable Order Form.
1.2 MMS provides to its customers certain products and services described herein, including marketing lists and associated marketing broadcast services. MMS shall provide to you the right to use the products and services selected on an applicable Order Form.
2. PRODUCTS AND SERVICES
2.1 MMS supplies healthcare provider mailing lists (each, a "List") for rental by customers for marketing use. The term "List" includes any list of names, businesses or professional offices, or any portion or derivation thereof, with any accompanying data, however stored, produced, or embodied, including but not limited to mail addresses, e-mail addresses, telephone numbers, facsimile numbers, or any other method by which a message can be transmitted or received. Lists may be owned by MMS or its third-party licensors (each, a "List Owner").
2.2 MMS performs email broadcasts to our targeted healthcare provider databases on behalf of customers. In connection with such broadcast services, MMS may create HTML and/or landing pages on behalf of customers.
2.3 MMS provides access to its Names On-Line Without Waiting (NOWW) System, which allows customers to query our database, download data for list rental and submit email broadcast orders to MMS.
2.4 MMS provides access to its NOWW API (Application Programming Interface) System, which allows customers to query our database and download data for list rental. The NOWW API is a robust API that handles the automation of actions available through MMS NOWW API such as looking up Physicians and verifying data elements or downloading data for list rental. However, we reserve the right to place limits on the amount of queries and way our customers use our API to ensure that we provide the highest level of service and performance to our customers.
3. LIMITED LICENSE
3.1 MMS hereby grants to you a limited, non-exclusive, non-transferable right to use the Lists and other products selected on an applicable Order Form in accordance with this Agreement solely for Client's own internal business purposes. You shall not without our written permission: (a) license, resell, rent, lease, distribute, market, copy, make derivatives, commercialize or otherwise transfer rights to or usage of any List or any portion or derivation thereof, to any third party for any purpose; (b) remove or alter any copyright, trademark or proprietary notice included in a List or other product; or (c) transfer, use or export our products or services in violation of any laws or regulations of any government or governmental agency.
3.2 You shall use Lists and any data contained therein solely for the purpose or purposes approved by the List Owner in accordance with this Agreement and any agreement required by the List Owner and supplied to you by MMS.
3.3 Unless otherwise specified in an applicable Order Form, each List is supplied for one-time use, defined as one mailing, fax, telemarketing contact, or other communication with each name or entity on such List and only for direct marketing purposes.
3.4 You shall provide a sample HTML, mailing/fax piece or telemarketing script to us, which may be approved or rejected by the List Owner in its sole discretion. In the event that you desire MMS to perform email broadcasts on your behalf, you shall timely provide to MMS a functional email suppression file.
3.5 You shall use Lists for lawful purposes only. You shall not use Lists for unapproved uses or for any unlawful or prohibited advertising, telemarketing, facsimile, or other transmission. You shall not use Lists in a manner that infringes any third party trademark, trade name, or copyright.
3.6 You agree that your use of Lists shall be in compliance with all applicable federal and state laws and regulations, including but not limited to the Telephone Consumer Protection Act of 1991, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act), and all applicable regulations of the Federal Communications Commission.
3.7 Except as otherwise provided in an applicable Order Form, you agree to use Lists within ninety (90) days of the date that MMS provides you access to each such List. You agree to make no copies of any List or any portion thereof other than an archival or backup copy, which you agree to destroy upon completion of your approved use.
3.8 You agree to mail, email, or otherwise send marketing materials to all seed names included on a List.
3.9 In the event of your unauthorized use of a List, you shall reimburse us and the List Owner for any unpaid fees plus any out-of-pocket expenses (including reasonable attorneys' fees) incurred in determining list use, and you shall indemnify us and the List Owner from any loss or liability arising out of such unauthorized use.
3.10 In the event that you receive an objection or negative reaction from a recipient of your marketing communications in connection with your use of a List, you shall notify MMS within five (5) business days of receiving such objection or reaction.
3.11 List brokers and advertising agencies may sublicense lists upon prior written consent of mms on their client’s behalf. List broker or advertising agency represents and warrants that list broker or advertising agency is a duly authorized agent of client with express authority from client to enter into and execute this order acknowledgement on client’s behalf. List broker or advertising agency signature hereto will bind both client and/or list broker or advertising agency and list broker or advertising agency shall be deemed equally liable with client as guarantor of performance of all aspects of this order acknowledgement and any agreement required by the list owner. List broker or advertising agency guarantees payment of all charges within 30 days from the invoice date whether or not list broker or advertising agency receives payment from client.
3.12 You acknowledge and agree that the Services are not configured to process, receive, and/or store: (a) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); (b) "nonpublic personal information" as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (c) data concerning any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); (d) card holder data under the Payment Card Industry Data Security Standard. All of the above are collectively referred to as Sensitive PII.
You represent and warrant that you will not transmit, request, provide us with access to, submit, store, or include any Sensitive PII through the Services or permit anyone to do so. You agree that we may terminate this Agreement immediately, without refund, if you are found to be in violation of this clause.
4. PRICING AND PAYMENT
4.1 We reserve the right to change prices without notice. A price quoted in any quotation or in any acknowledgement of your order shall not be deemed a continuing offer to provide products or services at such price. We will provide current price quotations promptly and cheerfully.
4.2 The prices set forth on the Order Form are exclusive of, and you are responsible for, any applicable shipping costs, duties and taxes. If we are obligated to pay any taxes on your behalf, such taxes shall be invoiced to and paid by you within thirty (30) days of the receipt of the invoice.
4.3 Our quotations for services assume that all material provided to us, including HTML, email suppression, customer target data and other content you provide to enable MMS to perform email broadcasts on your behalf, will permit efficient handling. Materials furnished to us that are incomplete, defective, or not up to industry standards may result in excess MMS production time and will be subject to additional charges. We will advise you in advance of any such additional charges.
4.4 In the event that third-party services are required in connection with the performance of services specified in an applicable Order Form, you shall pay the full amount due for such services prior to order processing.
4.5 In the event any amount due is not timely paid, you shall reimburse us for all reasonable costs of collection, including but not limited to reasonable attorneys' fees and court costs. Any overdue amounts shall accrue interest at the lesser of 1.5% per month or the highest rate allowed by law.
4.6 We reserve the right to delay execution of any order pending receipt of a signed electronic or facsimile copy of the Order Form and the List Owner's approval.
5. PROPRIETARY RIGHTS/CUSTOMER CONTENT
5.1 You acknowledge and agree that title to Lists and in all related copyrights and other intellectual property rights therein remain with MMS or its licensors. No title to or interest in any List or any portion thereof is transferred to you except for the right to use such List under the license expressly provided herein.
5.2 All rights, title and interest, including all intellectual property rights, in the MMS website and software, including but not limited to the NOWW System and NOWW API are and will remain the sole and exclusive property of MMS and its third party licensors. MMS retains all intellectual property rights in data collected in connection with an email broadcast performed by MMS on your behalf, including information regarding users opening broadcast emails, log file information, device identifiers and metadata.
5.3 You retain all rights, title and interest in documents, data, or data processing materials furnished by you (“Customer Content”). You hereby grant MMS and its service providers a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, distribute, and prepare derivative works of the Customer Content in connection with and in accordance with this Agreement and until such time as you request deletion of the Customer Content. Customer represents and warrants that Customer has all rights to grant such license without infringement or violation of any third party rights, including without limitation, any privacy, publicity, intellectual property, contractual or any other rights under applicable law or contract, and that MMS’ use of Customer Content as permitted under this Agreement will not violate applicable law. Any such property furnished to MMS in connection with our provision of services hereunder, including HTML, email suppression and customer target files, will be maintained by MMS for a period of up to two (2) years following the services or expiration or termination of this Agreement. You are solely liable and responsible for Customer Content.
The confidential information ("Confidential Information") of MMS shall include without limitation its Lists, pricing, software code, vendors, employee information, proposals and all correspondence between you and MMS. Your Confidential Information shall include all information provided to MMS that is not publicly available; provided, that Confidential Information shall not include (a) information of discloser that is or becomes in the public domain through no fault of the recipient; (b) information received by recipient from a third party without an obligation of confidentiality; (c) information independently developed by recipient without use of discloser's Confidential Information; (d) information required to be disclosed by law or court order; and (e) HTML, email suppression, sample mailing/fax piece or telemarketing script provided by you for list owner approval or to enable MMS to perform email broadcasts on your behalf. Each party retains all right, title and interest in its Confidential Information. The recipient shall not, without the discloser's prior written consent, disclose to any third party any Confidential Information of discloser or use the Confidential Information for any purpose not permitted, and each recipient shall protect the Confidential Information of discloser from third parties by using at least a reasonable degree of care. Each party shall be responsible for any breach of this Agreement by its permitted contractors, employees and agents.
The use of some of the services (including the NOWW System and NOWW API) may require you to register with MMS. To register you must complete the registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You agree to maintain and promptly update your registration information to keep it true, accurate, current and complete. If you provide any registration information that is untrue, inaccurate, not current or incomplete, or if MMS has reasonable grounds to suspect that any such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account.
When you register, you will choose a username and password. You are entirely responsible for maintaining the confidentiality of your username and password and are solely responsible for all activity under your username and password. You may not use anyone else's username or password and you must not permit others to use your username or password. Your access is limited to one user session; concurrent sessions using an identical username and password combination are prohibited. You agree to notify MMS immediately in the event you become aware of any unauthorized use of your username and/or password, any unauthorized use of a List or any other breach of these Terms and Conditions. MMS will not be liable for any loss that you may incur as a result of the misuse of a password or account, either with or without your knowledge.
8.1 You agree to indemnify, defend and hold MMS and List Owner and their respective employees, directors, officers and agents harmless against any claim, liability, damages, losses, judgment, and other expenses including reasonable attorney's fees and court costs arising out of or resulting from any third party claims made or proceedings brought against MMS or List Owner to the extent such liability arises as a result of (a) your breach of this Agreement; (b) your negligence or willful misconduct; (c) your failure to provide a functional, accurate and complete email suppression file to MMS in connection with an MMS-initiated email broadcast on your behalf; (d) Customer Content; (e) excessive use of or queries to the services (including the NOWW System and NOWW API); or (f) any unauthorized use of your username and/or password.
8.2 In the event that MMS or List Owner seeks indemnification hereunder, such party shall promptly notify you in writing of a claim or suit upon which it intends to base a request for indemnification and shall provide reasonable cooperation. No settlement or compromise shall be binding on MMS or List Owner without its prior written consent, not to be unreasonably withheld.
9. WARRANTIES AND WARRANTY DISCLAIMERS
9.1 You warrant that you (a) have full power and authority to enter into the Agreement and perform your obligations herein, (b) will conduct business in a professional manner and in compliance with all applicable laws; (c) will avoid deceptive, misleading, or unethical practices that may be detrimental to MMS or its products or services; and (d) will make no false or misleading representations with respect to MMS products or services.
9.2 NEITHER MMS NOR ITS LICENSORS OR VENDORS MAKE ANY WARRANTIES TO YOU, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. NEITHER MMS NOR ITS LICENSORS WARRANT THAT THE LISTS OR OTHER PRODUCTS ARE ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
10. LIMITATION OF LIABILITY
THE MAXIMUM LIABILITY OF MMS, ITS AGENTS, DIRECTORS AND OFFICERS AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY YOU HEREUNDER IN THE THREE MONTHS PRIOR TO THE CLAIM. IN NO EVENT SHALL MMS, ITS AGENTS, DIRECTORS OR OFFICERS BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTIONS, TELECOMMUNICATIONS AND INTERNET INTERRUPTIONS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF MMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU AGREE THAT YOU MUST NOTIFY MMS OF ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT WITHIN THIRTY DAYS AFTER SUCH CLAIM AROSE; OTHERWISE, SUCH CLAIM SHALL BE PERMANENTLY BARRED.
11. TERM & TERMINATION
11.1 This Agreement is effective as of the Effective Date and shall continue for an initial term of twelve (12) months. The Agreement will automatically renew for successive renewal periods of twelve (12) months unless terminated by either party by providing at least sixty (60) days' written notice prior to the end of the then-current term.
11.2 MMS may immediately terminate this Agreement by providing written notice of such termination to you upon the occurrence of any of the events described below:
11.2.1 You materially breach any of the terms or conditions of this Agreement;
11.2.2 You cease to exist as a business entity or otherwise terminates or significantly limit your business operations;
11.2.3 You are liquidated, dissolved, reorganized, merged, sells substantially all of your assets, enter into receivership or change management, voting control or corporate form;
11.2.4 You make an assignment for the benefit of creditors;
11.2.5 You are insolvent or unable to pay your debts as they mature in the ordinary course of business, or if there are any proceedings instituted by or against you in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution; or
11.2.6 You fail to secure or renew any license or permit necessary for the conduct of your business, or if any such license is revoked or suspended for any reason.
11.3 Upon any termination of this Agreement: (a) you shall immediately cease use of the Lists and other products and services; (b) upon request from the other party, each party shall return or destroy all copies of the other party's Confidential Information in its possession and/or control within thirty (30) days after the effective date of such termination and certify in writing that such party has complied with its obligations hereunder; (c) any and all payment obligations will immediately become due, regardless of whether longer periods of time were previously agreed upon by the parties; and (d) all licenses granted herein shall terminate.
11.4 The provisions of Sections 4, 5, 7, 8, 9, 11.3, 11.4, 11.5, and 12 shall survive any termination or expiration of this Agreement. The provisions of Section 6 shall survive for three (3) years after any termination or expiration of this agreement thirty.
11.5 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. YOU WAIVE ANY RIGHT YOU MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT. NEITHER PARTY WILL BE LIABLE TO THE OTHER ON ACCOUNT OF TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR REIMBURSEMENT OR DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED INCOME, OR ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY EITHER PARTY OR FOR ANY OTHER REASON WHATSOEVER BASED UPON OR GROWING OUT OF SUCH TERMINATION OR EXPIRATION.
12.1 This Agreement shall be governed by, and construed in accordance with the laws of the State of Illinois, excluding its conflict of laws provisions.
12.2 This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements, whether written or oral. Except as expressly set forth hereunder, amendments or revisions to this Agreement must be in writing, signed by both parties' duly authorized representatives.
12.3 Except with regard to payments due MMS, neither party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due care.
12.4 Your ink, facsimile or digital signature on an applicable Order Form, or any other method of demonstrating your assent such as clicking "I Agree" in an appropriate box on the MMS website, NOWW System and/or NOWW API indicates that you have read and agree to be bound by the terms of this Agreement and any other applicable agreements incorporated herein. Once an authorized agent from your organization signs this Agreement, it will apply to any subsequent orders placed by any person in your organization until the termination or expiration of this Agreement.
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