Terms & Conditions

• • Licensee shall pay all fees stated in the payment portal (the “Subscription Fee”). If no payment schedule is specified, the entire amount of the Subscription Fee shall be payable within 30 days of invoice. All amounts payable by Licensee under this Agreement will be paid to ReachStream without setoff or counterclaim, and without any deduction or withholding.
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  • In the event that Licensee fails to timely make any payment of Subscription Fees, ReachStream may, in its sole discretion, (i) restrict or suspend Licensee’s access to the Licensed Materials until all past-due payments are made, (ii) terminate this Agreement or (iii) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee. 
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  • Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Licensee shall indemnify, defend, and hold harmless ReachStream and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of ReachStream to remit amounts collected for such purpose from Licensee. ReachStream is solely responsible for taxes based upon ReachStream’s net income, assets, payroll, property, and employees. 

• • Authorized User. An “Authorized User” is a natural person who is an employee of Licensee and who has been identified and designated in writing by Licensee and accepted by ReachStream. Licensee may designate a natural person who is not an employee of Licensee (i.e. an independent contractor) as an Authorized User only with ReachStream’s prior permission and only where such person is contractually obligated to comply with Licensee’s instructions regarding the access to and use of the Licensed Materials. In the event that any Authorized User’s employment or contractual relationship upon which his or her Authorized User status is conditioned under this section terminates, such person’s authorization to access the Licensed Materials and/or any ReachStream Technology shall be automatically revoked without any further action by ReachStream. In the event of a termination as described in the previous sentence, Licensee shall promptly notify ReachStream so that such person’s login credentials can be disabled. Licensee may reassign the Authorized User designation at any time subject to the foregoing qualification requirements. Authorized User licenses that remain inactive for more than 180 days may be deemed expired and can be removed/deleted out of active subscription lists of ReachStream database. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared, and may not under any circumstances be used by anyone who is not an Authorized User to gain access to the Licensed Materials. If Authorized User login credentials are shared with non-Authorized Users, Licensee shall pay additional Authorized User fees as provided due upon Licensee’s receipt of invoice. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of the Licensed Materials set forth herein. 

• • Authorized Uses. Licensee shall not access or use Licensed Materials for any purpose except the sales, marketing, recruiting, or business development activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Authorized uses shall be limited to the following: (i) to view the Licensed Materials; (ii) to communicate with a person identified in the Licensed Materials (each such person, a “Licensed Materials Contact”); and (iii) to download and print selected information from the Licensed Materials. Licensee shall not permit anyone who is not an Authorized User to use any username or password or otherwise access or use the Licensed Materials. Licensee shall not redistribute, sublicense, transfer, sell, offer for sale, or disclose any of the Licensed Materials to any third party. Licensee shall not incorporate any of the Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement, Licensee shall cease accessing the Licensed Materials or using the Licensed Materials in any way. Licensee shall not remove, obscure, or modify any notice of copyright or other notice included in the Licensed Materials. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact. Licensee shall ensure that no Authorized User takes any action inconsistent with Licensee’s obligations under this Agreement.
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  • Use of ReachStream Technology. Licensee is permitted to use the ReachStream Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the ReachStream Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the ReachStream Technology or related documentation; (iii) distribute or display any of the ReachStream Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the ReachStream Technology, or use the ReachStream Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the ReachStream Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the ReachStream Technology or related documentation; or (vii) disclose the results of any ReachStream Technology or program benchmark tests to any third parties without ReachStream’s prior written consent. Licensee may use ReachStream Technology only in accordance with this Agreement and not for the benefit of any third party unless expressly permitted herein.
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  • Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any CRM, marketing automation, or sales enablement system for the purpose of allowing persons who are not Authorized Users to access or use the Licensed Materials. Any Licensed Materials that are downloaded and/or integrated into any CRM system must be maintained with identifying information indicating that such materials originated with ReachStream. 

• • Access to Licensed Materials. ReachStream will provide Licensee with access to ReachStream’s Licensed Materials for the products and/or services. 

• • Quality Guarantee. If more than 5% of the Licensed Materials Contacts are no longer employed by their listed companies, upon notice from the Licensee, ReachStream shall have 30 days to correct the Licensed Materials in order to make them at least 95% accurate. If ReachStream is unable to achieve 95% accuracy within 30 days, upon Licensee’s request, Licensee may terminate the Agreement and shall be entitled to a prorated refund of any prepaid fees as of the date of the original notice.

• • Support. ReachStream will provide reasonable assistance with activation and/or installation support, including assisting with integration with Licensee’s CRM, marketing automation, or sales enablement systems, as applicable. ReachStream will offer reasonable levels of continuing support to assist Licensee and Authorized Users in accessing the Licensed Materials. ReachStream will make its personnel available by email, online chat, phone, or fax for feedback, problem solving, or general questions between the hours of 7:00 a.m. and 4:00 p.m. Pacific Time.
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  • Licensee Data. “Licensee Data” means any Confidential Information of Licensee and any information regarding Licensee’s Authorized Users provided to ReachStream in connection with this Agreement. ReachStream will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data, which will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Licensee Data by ReachStream except (a) to perform ReachStream’s obligations under this Agreement, (b) as compelled by law, or (c) as Licensee expressly permits in writing. To the extent that Licensee utilizes ReachStream Technology (including any Integration Tools), ReachStream will make commercially reasonable efforts consistent with its research protocols and priorities, to respond to match and clean and append requests by researching and/or verifying business contact information so submitted and supplementing the Licensed Materials. ReachStream may use email deliverability data (such as email “bounce” data) accessible through Licensee’s use of ReachStream Technology to improve ReachStream’s database by, for example, eliminating invalid email addresses from the Licensed Materials.

• This Agreement governs Licensee’s access to and use of certain Licensed Materials (defined below) made available to Licensee by ReachStream or any of its affiliates and Licensee’s access to and use of any ReachStream Technology (defined below).
• The “Licensed Materials” consist of all electronic information executed between the parties, which shall be published or otherwise made available by ReachStream to Licensee under this Agreement. The “ReachStream Technology” consists of software, websites, networks, and equipment made available or used by ReachStream pursuant to this Agreement to facilitate Licensee’s access to and/or use of the Licensed Materials, including, but not limited to, ReachStream’s online graphical user interface and ReachStream’s Integration Tools (defined below) (collectively, the “ReachStream Technology”). ReachStream technology does not include and specifically excludes Third Party Applications (defined below).
• Subject to the terms and conditions herein, ReachStream hereby grants to Licensee a non-exclusive license to access and use the Licensed Materials and the ReachStream Technology, and to provide the Licensed Materials and ReachStream Technology to Authorized Users in accordance with this Agreement, during the Term of this Agreement.
• Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the ReachStream Technology may interoperate, including, for example, Licensee’s CRM, marketing automation software, or sales enablement software, if any. ReachStream may make available certain “Integration Tools”, which consist of ReachStream Technology designed to allow Licensee to use ReachStream Technology and the Licensed Materials in such a way as to interoperate with one or more Third Party Applications. ReachStream is not responsible for and does not endorse any Third Party Applications or websites linked to ReachStream Technology. 
• Ownership of the Licensed Materials and Intellectual Property. Licensee acknowledges and agrees that, as between Licensee and ReachStream, the Licensed Materials, the ReachStream Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or ReachStream Technology) are the proprietary intellectual property of ReachStream, whether or not such Licensed Materials are trademarked, copyrighted, or patented. Licensee further agrees that the original and any copies of the Licensed Materials are and shall at all times be the sole and exclusive property of ReachStream and Licensee agrees that Licensee will take no action in contravention of this fact. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or ReachStream Technology or any part thereof beyond the license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, ReachStream, its affiliates and/or its licensors reserve all right, title and interest in and to the Licensed Materials and ReachStream technology, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.

• Licensee represents, warrants, and covenants that it will not, in connection with its use and access of the Licensed Materials: (i) commit or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (ii) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (iii) use the Licensed Materials, or any part thereof, to harass or harm any person in any way; or (iv) disparage, defame, libel or make untrue or malicious statements about ReachStream.
 
• Identification of Authorized Users. Licensee shall identify all Authorized Users to ReachStream by providing names, work email addresses, and telephone numbers.
 
• Provision of Notice of License Terms to Authorized Users. Licensee shall provide Authorized Users with notice of the terms and conditions of the EULA including, in particular, its limitations on access to or use of the Licensed Materials.
 
• Protection from Unauthorized Use. Licensee shall make commercially-reasonable best efforts to prevent unauthorized access to or use of the Licensed Materials. In the event of any unauthorized use of or access to the Licensed Materials, ReachStream may suspend or terminate Licensee’s access to the Licensed Materials, provided that ReachStream shall first provide reasonable notice to Licensee and cooperate with the Licensee to avoid recurrence of any unauthorized use of or access to the Licensed Materials.

• “Confidential Information” of a party means such party’s: inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of ReachStream.
 
• Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement. Without the prior written consent of the other party, neither party shall: disclose or make available such Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement, unless the Confidential Information (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) subsequently becomes generally available to the public by publication or otherwise through no fault of such party.
 
• The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section.
 
• All Confidential Information shall be returned to the disclosing party or destroyed upon the earlier of: (a) the termination of this Agreement; or (b) receipt by the receiving party of a written request from the disclosing party.

• Overview

This Agreement contains the complete terms and conditions that apply to you becoming an partner in ReachStream.com’s Partner Program. The purpose of this Agreement is to allow HTML linking between your web site and the reachstream.com web site. Please note that throughout this Agreement, “we,” “us,” and “our” refer to reachstream.com, and “you,” “your,” and “yours” refer to the partner. 

• Partner Obligations

2.1. To begin the enrollment process, you will need to register with us at https://affiliate.reachstream.com/. We hold the authority to accept or reject your application during the registration process at our sole discretion if we determine your digital marketing presence and your brand reputation is unsuitable for our Program, including if it: 

2.1.1. Promotes sexually explicit materials 
2.1.2. Promotes violence 
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age 
2.1.4. Promotes illegal activities 
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law 
2.1.6. Includes “Merchant” or variations or misspellings thereof in its domain name 
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion. 
2.1.8. Contains software downloads that potentially enable diversions of commission from other Partners in our program. 
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Reachstream.com or any other Partnered business. 

2.2. As a member of ReachStream Partner Program, you will have access to Partner Account Manager. Here you will be able to review our Program details and use partner links available within the platform to access exclusive partner discounts. 

2.3. ReachStream reserves the right, at any time, to review your placement and approve the use of affiliate Links and require that you change the placement or use to comply with the guidelines provided to you. 

2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance. 

2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third-party rights.

• ReachStream Rights and Obligations

3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Reachstream.com Partner Program. 

3.2. ReachStream reserves the right to terminate this Agreement and your participation in the Reachstream.com Partner Program immediately and without notice to you should you commit fraud in your use of the ReachStream Partner Program or should you abuse this program in any way. If such fraud or abuse is detected, Reachstream.com shall not be liable to you for any commissions for such fraudulent sales. 

3.3. This Agreement will begin upon our acceptance of your Partner registration and will continue unless terminated hereunder. 

• Termination

Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of email. In addition, this agreement will be promptly terminated if there is a violation of any of the partner terms and conditions outlined in the agreement. 

• Modification

We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such an event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and ReachStream’s Partner Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in ReachStream’s Partner Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes. 

• Access to Partner Account Interface

You will be able create your login ID and password so that you may enter ReachStream’s secure Partner account interface – https://affiliate.reachstream.com/. From this site you will be able to visualize and receive your reports that will describe our calculation of the commissions due to you. 

• Promotion Restrictions

8.1. You are free to promote our platform on your own web sites, but naturally any promotion that mentions ReachStream could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by ReachStream. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote ReachStream so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote ReachStream so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from ReachStream. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the ReachStream Partner Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation. 

8.2. Partners that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Reachstream.com, ReachStream, www.ReachStream, www.Reachstream.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from ReachStream’s Partner Program. We will do everything possible to contact the Partner prior to the ban. However, we reserve the right to expel any trademark violator from our Partner program without prior notice, and on the first occurrence of such PPC bidding behavior. 

8.3. Partners are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in ReachStream’s service). 

8.4. Partner shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited ReachStream’s website (i.e., no page from our site or any Reachstream.com’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of Partner and non Partner commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of ReachStream websitesite in IFrames, hidden links and automatic pop ups that open ReachStream’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Partner banners with any other banners, other than those that are on web sites 100% owned by the owner of the application. 

• Grant of Licenses

9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of ReachStream’s Partner Program. You agree that all uses of the Licensed Materials will be on behalf of ReachStream and the good will associated therewith will inure to the sole benefit of ReachStream. 

9.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other. 

Disclaimer

REACHSTREAM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING REACHSTREAM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF REACHSTREAM ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 

• Representations and Warranties

You represent and warrant that: 

11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; 

11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; 

11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement. 

• Limitations of Liability

WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL REACHSTREAM’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT. 

• Indemnification

You hereby agree to indemnify and hold harmless Spokesly, and its subsidiaries and Partners, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Partner trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us. 

• Confidentiality

All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party. 

• Miscellaneous

15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and ReachStream. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or any other of Your Site or otherwise, that reasonably would contradict anything in this Section. 

15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party. 

15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof. 

15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties. 

15.5. This Agreement represents the entire agreement between us and you and shall supersede all prior agreements and communications of the parties, oral or written. 

15.6. The headings and titles contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement. 

15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect. 

• Attorney Fees. In the event of any dispute arising under this agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
 
• Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator and shall be conducted in Seattle, Washington. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages under any legal theory; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 16 (Limitation on Liability) of this Agreement.
 
• Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
 
• Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive information; (c) claims by ReachStream to collect Subscription Fees; and (d) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.

• Licensee agrees to indemnify, defend, and hold harmless ReachStream and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Licensee’s access or use of the Licensed Materials in violation of any law, (2) Licensee’s violation of any provision of this Agreement, (3) Licensee’s sending of any information, messages, or materials to any Licensed Materials Contact (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (4) the use of any Licensed Materials or ReachStream Technology by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
 
• ReachStream shall indemnify Licensee for any damages finally awarded by any court of competent jurisdiction against Licensee in, or for amounts paid by Licensee under a settlement approved by ReachStream in writing of, any legal proceeding brought by a third party alleging that the Licensed Materials or ReachStream Technology infringes upon or violates the intellectual property rights of any such third party.
 
• As a condition to any right to indemnification under this agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim or proceeding subject to indemnification hereunder.

This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription or agreement between the parties for access to ReachStream’s database is incorporated into this Agreement and governed by this EULA.