THESE TERMS AND CONDITIONS OF USE CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND FLIPSIDE PRODIGY INC. d/b/a AGENCY ACCESS.
AGREEMENT TO TERMS AND CONDITIONS OF USE
1. GENERAL TERMS
2. OWNERSHIP OF WEBSITE AND ITS CONTENT
This Website is owned and operated by Agency Access. All of the information and content featured or displayed on the Website (the "Content"), including, but not limited to, listings of artists, representatives, advertising agencies, design studios, corporate art departments and support services, text, graphics, photographs, images, illustrations and software, is owned by or licensed to Agency Access or its advertisers. Agency Access reserves the right to amend, change, alter, enhance, remove, or cease to provide access to the Website or its content at any time, without prior notice to any User and/or Subscriber to the extent not prohibited under Your Subscription Agreements.
Flipside Prodigy Inc., owns any and all intellectual property rights arising out of, related to, or in any way connected with "Agency Access," "agencyaccess.com" and the Agency Access or agencyaccess.com logos, including, but not limited to, the colorized four-petal logo ("Agency Access Intellectual Property"). You cannot use the Agency Access Intellectual Property without first obtaining Agency Access' specific written permission. Nothing on the Website shall be construed as granting a license or right to use the Agency Access Intellectual Property without its permission.
4. NEWSLETTERS AND PROMOTIONS
5. AGENCY ACCESS BLOG
6. HARDWARE, SOFTWARE AND CONTENT
7. THIRD-PARTY LINKS
The Website may contain links to third-party Websites. Such other Websites are not owned, operated or controlled by Agency Access. You agree that Agency Access is not responsible for the content or functionality contained on any such third-party Website and that You waive any and all claims against Agency Access as to any loss incurred as the result of Your access or use of such third-party Website.
Agency Access offers paid Subscribers access to its database of creative professionals as well as a variety of marketing or consulting services in exchange for a fee ("Subscriptions"). Depending on the Subscription(s) selected and paid for by You, You (and the individuals, such as assistants, representatives, consultants, marketing staff, etc., that are working with You to assist Your marketing efforts) may be permitted to view information contained in Agency Access' "Contact Database" and/or receive "Marketing and/or Consulting Services" (collectively "Services") as offered by Agency Access through this Website or otherwise. Agency Access offers different levels of Subscriptions, depending on Your unique characteristics, such as size, number of users, nature of the Subscription(s) selected, etc. ("Subscription Level"). You will have an opportunity to discuss Your Subscription Level qualifications when you arrange for Your Subscription with Agency Access. Any information, software or other material provided to You by Agency Access under Your Subscription is for the limited use and purpose of that Subscription and only to the extent permitted by Your Subscription Level.
Some Services are also governed by additional, specific terms set forth in the incorporated Agreement applicable to that Service ("Services Agreements"). You may access specific Services Agreement(s) applicable to Your Subscription by clicking one of the links below.
a. Contact Database Subscription
As a Subscriber, You may subscribe for access to Agency Access' database of creative professionals ("Contact Database"). Your Subscription permits You (and the individuals, such as assistants, representatives, consultants, marketing staff, etc., that are working with You to assist Your marketing efforts) to view information contained in the Contact Database, which may include direct contact information for creative personnel at advertising agencies, editorial professionals, design firms, graphic design firms, interactive/multimedia design firms, magazine and book publishers, in-house corporate art departments and major corporate marketing departments. The Contact Database may offer further contact details, when available, for the creative personnel in the Contact Database, which may include additional information, such as job titles, email addresses, and the contact's buying habits. Your Subscription also provides You (and the individuals, such as assistants, representatives, consultants, marketing staff, etc., that are working with You to assist Your marketing efforts) with support services concerning Your access to the Contact Database. The information contained in the Contact Database may be downloaded by You, as a current, paid Subscriber, (and the individuals, such as assistants, representatives, consultants, marketing staff, etc., that are working with You to assist Your marketing efforts) for Your exclusive use and benefit only, in a manner consistent with Your Subscription Level. Agency Access reserves the right to change any or all of the information contained in the Contact Database, or to change the format or the way the Contact Database may be viewed or delivered to a Subscriber.
As a Contact Database Subscriber, You agree that:
- You may use the data contained in the Contact Database for promotional purposes in connection with the promotion of a single person, business or entity consistent with Your Subscription Level;
- You may formulate and construct a contact list tailored to Your promotional needs;
- You may use the Contact Database to download, search, and construct a list of contacts and/or send emails using Your personal selection criteria ("Customized List");
- You may permit individuals, such as assistants, representatives, consultants, marketing staff, etc., that are working with You to assist Your marketing efforts to access or use the data so long as You a) advise them that their access and use of the data is for the sole purpose of Your marketing efforts and b) take reasonable efforts to ensure that they do not access or make use of the data for their own or someone else's benefit;
- You may upload Your personal contacts for permitted marketing purposes ("Personal Database");
- You may not upload any personal contact or include in a Customized List or Personal Database any person or entity that has unsubscribed or requested exclusion from Your marketing promotions;
- You may not publish, distribute or disclose the information contained in the Contact Database to any third-party nor allow any third-party to access, use, or benefit from the Contact Database or information contained therein, except for the purpose of assisting You in Your marketing efforts;
- You may not alter, misconstrue, deface, or change in any way the information contained in the Contact Database or act in any way that will change its original meaning or representation;
- You may not, without the prior written consent of Agency Access, use or permit the use of the information in the Contact Database:
- to generate any statistical information or analysis;
- prepare any comparison to other information databases for purpose of furnishing the comparison or data, in any manner, to a third-party;
- in connection with individual credit, employment or insurance applications;
- for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third-party.
b. Marketing and/or Consulting Services
As a Subscriber, You may subscribe to receive certain "Marketing Services" to be provided by Agency Access, such as, by way of example only, Emailer, Print, Mail, etc. As a Subscriber, You may also subscribe for Agency Access to provide Consulting Services, such as, by way of example only, Campaign Manager, Estimating, Portfolio Build, etc. In order to receive some Services that You select, it may also be necessary for You to subscribe to the Contact Database or other Services. Other Services may be available for Subscription on a "stand-alone" basis or in different combinations. You will have an opportunity to discuss the appropriate combination when you arrange for Your Subscription with Agency Access.
c. Subscriber's Obligations
Your use of the Contact Database or Services is exclusively limited to promotion of a single person, artist or entity consistent with Your Subscription Level. The use of the Contact Database or Services for promotion of more than one person, artist or entity, or in excess of Your Subscription Level, will constitute a material breach of Your agreement(s) with the Agency Access and grounds for immediate termination.
d. Subscription Duration
e. Subscriber's Promises and Warranties
As a condition of receiving access or services under Your Subscription:
You agree that you will use any data, information and services that you obtain in compliance with any and all applicable U.S. Federal and State laws, rules and regulations, including, but not limited to, those concerning fax broadcasts, email transmissions, and direct marketing.
You further agree to make yourself aware of and to fully comply with all non-United States laws that may be applicable to Your use of the data, including those laws that are applicable to the jurisdiction to which You direct any email transmission, fax or direct marketing. For a further discussion of Your obligations, see "Subscriber's Obligations in Compliance with Non-US Law" which may be accessed by clicking here.
You agree that You shall keep up-to-date and abide by current business practices respecting the privacy of consumers. You agree that You shall not supply or enter any information into any Agency Access database that is false, defamatory, harmful, viral in nature, vindictive or negative in any way. You agree that You shall not use any information obtained from Agency Access for an illegal purpose or for any purpose that can be reasonably construed as objectionable.
You agree that You shall keep confidential User names, Passwords, contacts, lists, and any other information derived from Your access and use of the Contact Database or Services. You promise and agree that You shall not allow any individual or entity to use or view any of the contacts or information that You have derived from Your relationship with Agency Access for any purpose other than assisting You in Your marketing effort. You Agree that if your User name and/or Password is misplaced or is delivered to another individual, or if You allow another individual or entity to use, view or access the Contact Database or Services, for any purpose other than assisting You in Your marketing effort, You shall be liable for and reimburse Agency Access for the purchase of a full Subscription at the rates in effect at the time, as well as costs and fees, including attorneys' fees, incurred by Agency Access to investigate and correct Your breach. The foregoing is without waiver of any remedy that may also be available to Agency Access under law or equity.
f. Seeding Data Lists
You understand Agency Access engages in the process of "seeding" of its mailings, contact lists, and other data listings, so that it may detect possible violation, fraud and unauthorized distribution or use of the information contained therein in violation, breach or in excess of Your Subscription. You hereby consent to "seeding" by Agency Access in the manner and to the extent that Agency Access deems necessary and appropriate.
g. Subscription Termination
Your access to the Contact Database and/or receipt of Services may be suspended or terminated at Agency Access' sole discretion, upon any of the following occurrences:
- Your Subscription(s) has expired and has not been renewed;
- Suspicion by Agency Access that Your User name and/or Password has been lost, stolen, sold, conveyed or loaned to a person not entitled to view or have access to the Contact Database or Services;
- Suspicion by Agency Access that You have used data or services derived from Your Subscription in a manner that is illegal under U.S. law or any non-US law that Agency Access has notice applies based on Your distribution of Your marketing materials; and
Upon termination of the Subscription, You shall immediately discontinue using any information, software or other materials provided to You by Agency Access. You agree that You shall return or destroy any items relating to the services and products provided by Agency Access (including, but not limited to, data, media, software, hardware, electronic and printed documentation). You also agree that You shall purge any data, including, but not limited to, data from the Contact Database or maintained in Your Customized List, from all stationary and removable computer storage devices and media containing data, information and/or materials that You accessed or received as a result of Your Subscriptions. You agree that termination does not relieve You of Your obligation to pay all fees that are or may become due under Your agreements with Agency Access.
9. AGENCY ACCESS' GRANT OF LIMITED LICENSE
a. User License
b. Subscriber License
c. Limitation on License
As a User and/or Subscriber may not, under any circumstances, do any of following:
- You may not use the name Agency Access or Flipside Prodigy, Inc. for Your own or anyone else's promotional purposes;
- You may not include the name Agency Access or Flipside Prodigy, Inc. in any promotional products unless such use is specifically pre-approved by Agency Access, in writing;
- You may not participate in any activity that may be construed as damaging, detrimental, or competitive to Agency Access, the Contact Database or its Services;
- You may not interfere with Agency Access' seeding of the Contact Database, emails, postal mail or other data lists, or Agency Access' detection of a seed; and
- You may not sell, assign, publish, distribute, hand out, allocate, issue, dispense, allow any other entity or person access to, or convey any part of the Contact Database or any part of any information obtained through Agency Access' data, information, lists or services, without the express prior written consent of Agency Access.
10. SUBSCRIBER'S CONTENT
As a Subscriber, You may subscribe to receive certain Marketing Services that may enable or require You to provide content so that Agency Access may broadcast it on your behalf by email, publication, mailing or otherwise. In order to receive such Marketing Services, You agree that You must deliver the content that You wish for Agency Access to broadcast (" Subscriber's Content") to Agency Access within the timeframe specified by Agency Access to permit broadcast by the desired broadcast date. All Subscriber's Content is subject to Agency Access' approval before broadcast by Agency Access. Agency Access reserves the right, at its sole discretion, to reject any Subscriber's Content that advertises or promotes any product or service, including, but not limited to, any Subscriber's Content that, in Agency Access' opinion, advertises or promotes illegal activity, illegal products, illegal product paraphernalia, sexual paraphernalia, adult films or other media, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. Notwithstanding Agency Access' reservation of this right, Agency Access has no responsibility to and is not liable to You or any person or entity for its broadcast or refusal to broadcast the Subscriber's Content whether or not it is later determined to be illegal or objectionable.
11. DETAILS OF EMAIL BROADCAST
In the event that You subscribe for Marketing Services that include distribution or broadcast of Your emails by Agency Access, each such email must correctly identify the Subscriber's contact information and contain an opt-out feature that allows the recipient to be electronically removed from the list of recipients that may receive Your broadcast emails in the future. It is Your responsibility, as a Subscriber, to keep Your contact information up-to-date and to take reasonable steps to comply with the request of any recipient that opts-out of Your future broadcast emails.
12. SUBSCRIPTION FEE
The Subscriber agrees to pay the Subscription Fees set forth in the Subscription Agreement between Subscriber and Agency Access, in full, for all Subscription(s) that You select at the time that You subscribe to for services. Under certain circumstances, Agency Access may permit Subscribers to make periodic payments of the full Subscription Fee as set forth in the Subscription Agreement between You and Agency Access, without affecting the duration of the Subscription or the total Subscription Fee payable by the Subscriber, in which case the Subscriber must 1) make an initial Subscription Fee payment; and 2) provide a credit card number and authorization for Agency Access to automatically charge the Subscriber's card for each periodic payment without requiring further authority from the Subscriber. Payment, as set forth in Your Subscription Agreement with Agency Access, must be made by You prior to Your access to and/or use of the Subscription(s) or receipt of any Services in connection with and, if applicable, must continue to be made in a timely fashion throughout Your Subscription's Duration. You agree that You will not interfere with Your pre-authorized periodic charge to Your credit card during the Duration of Your Subscription or until the full Subscription Fee is paid.
Your Subscription Fee(s) may be subject to certain federal, state or local taxes, which are not included and are in addition to Your Subscription Fee. In all circumstances, where Agency Access is required by law to collect such taxes from You, it shall do so.
If access or services are provided by or through You to a non-Subscriber or if You use Your Subscription in excess of Your Subscription Level, You agree that You will fully reimburse Agency Access for the cost of the Subscription(s) for the access or services that were received as well as the costs of investigation and collection of said Subscription Fees, including, but not limited to, reasonable costs, expenses and attorneys' fees.
The foregoing rights by Agency Access are without waiver of any further rights that Agency Access may have at equity or law.
13. OFFERED CONTENT
As a condition of Your submission to Agency Access of Your Subscriber's Content and/or any comment, blog post, copy or art of any description that You provide to Agency Access for possible publication or dissemination by Agency Access ("Offered Content"), You hereby warrant, promise and agree that:
a) You own or have all necessary licenses, rights, consents, and permissions to use and to authorize Agency Access to use the Offered Content, including, but not limited to, any necessary patent, trademark, trade secret, copyright or other intellectual property or other proprietary rights in the Offered Content;
b) You have the written consent, release, and/or permission of each and every identifiable individual person in the Offered Content to use and to authorize Agency Access to use the name or likeness of each and every such identifiable individual person in the Offered Content;
d) You have the right to, and hereby, assign to Agency Access a limited, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Offered Content in any media formats and through any media channels, solely for the purpose and to the extent necessary for Agency Access and/or Flipside Prodigy Inc. d/b/a Found to promote and market their Website, database and associated services; and
e) You hereby agree to indemnify and hold harmless Agency Access from any and all claims of whatever nature that may arise from, in connection with, or be related to, Your Offered Content, including, but not limited to, any claim that You made an impermissible use of the Offered Content, did not have the necessary licenses, permissions or releases for Your Offered Content or lacked the requisite authority to grant Agency Access permission or license as to the Use of Your Offered Content as provided for above.
14. USER/SUBSCRIBER WARRANTIES
As a User and/or Subscriber, You agree that You will not, under any circumstances, use the Website or any services provided by Agency Access in connection with the Website to do the following:
(i) You will not make available any material that is protected by another's copyright, trademark, trade secret, or other intellectual property right, or is otherwise subject to third-party proprietary, privacy or publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant Agency Access all required license rights. See Agency Access' Copyright and Intellectual Property Policy
(ii) You will not make available any material that is false, misleading, harmful, abusive, tortious, vulgar, unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or sexually or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise inappropriate;
(iii) You will not cause harm, of any type, to minors;
(iv) You will not submit materials or post links to advertisements or solicitations of business other than advertisements or solicitations of business reasonably necessary to use the Website for its Intended Purpose;
(v) You will not intentionally or unintentionally violate or aid others in the violation of any applicable local, state, national or international law or regulation;
(vi) You will not enable or assist in the transmission of "junk mail," "chain letters," "pyramid schemes," unsolicited mass mailings, instant messaging, "spimming," or "spamming" or any other form of improper or illegal solicitation now known or that may be developed in the future;
(vii) You will not "stalk" or otherwise harass another person or assist another in doing so;
(viii) You will not collect or store private or personally identifying information about others for unlawful or inappropriate purposes;
(ix) You will not misrepresent or assist others in misrepresenting the origin of any Content, Subscriber's Content or Offered Content on the Website or services provided by Agency Access;
(x) You will not impersonate any person or entity, including, but not limited to, Agency Access' officials, employees, consultants, or otherwise misrepresent Your affiliation with any person or entity;
(xi) You will not make available any material that You are prohibited from disclosing as a result of Your contractual or fiduciary relationship with another individual or entity or as a matter of law or regulation;
(xii) You will not make available or distribute any materials, computer code or "malware" that facilitates hacking, or that is intended to interfere with or destroy the functionality of any Website, computer software, hardware or telecommunications equipment or to interfere with the performance or functionality of this Website or any other Website, including, but not limited to, software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information, any other form of improper or illegal malware now known or that may be developed in the future. See Agency Access Security Policy.
(xiii) You will not download data from any Agency Access database through automated means, including spiders, robots, crawlers or other automated means now known or that may be developed in the future;
(xiv) You will not harvest, modify, publish, transmit, transfer, sell, reproduce, create derivative works from, distribute, perform, link, display or in any way exploit any Content (including someone else's Subscriber Content or Offered Content), including, but not limited to, incorporating data from any Agency Access database into any email or "white pages" products or services, whether browser-based, based on proprietary client-site applications, web-based, or otherwise;
(xv) You will not sell, distribute, or make any use of, commercial or otherwise, data obtained from any Agency Access' database in a manner that could be expected to offend the person for whom the data is relevant;
(xvi) You will not create and maintain an Agency Access' user profile that contains hyperlinks to content not permitted on Agency Access;
(xvii) You will not disrupt the normal flow of dialogue in a chat room, cause a screen to "scroll" faster than other users of the Website are able to type, or otherwise act in a manner that negatively affects other Users' ability to engage in real time exchanges;
(xviii) You will not interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website;
(iv) You will not access the Website after Your access or subscription has been terminated by Agency Access for any reason; and
15. DISCLAIMERS AND LIMITATIONS OF WARRANTIES
Agency Access uses reasonable efforts to ensure the accuracy, correctness and reliability of the Content of the Website, but it makes no representations or warranties as to the Content's accuracy, correctness or reliability and You may not rely on any statement, express or implied, to the contrary. Agency Access will not knowingly promote or display inaccurate, incorrect, or unreliable Content. If Agency Access is provided with actual knowledge that the Content contains incorrect or unreliable facts, Agency Access will take reasonable steps to correct or remove same within a reasonable time after receiving actual notice of its inaccuracy.
THIS WEBSITE AND ITS CONTENT, AS WELL AS THE INFORMATION, DATABASE AND SERVICES ASSOCIATED THEREWITH ARE PROVIDED "AS IS." AGENCY ACCESS EXCLUDES AND DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE. AGENCY ACCESS IS NOT LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE WEBSITE, ITS CONTENTS AND/OR THE DATA OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBEDDED IN, OR THE MATERIALS AND CONDUCT AVAILABLE AT THIS WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. THE USER AND/OR SUBSCRIBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO THE USER'S AND/OR SUBSCRIBER'S USE OF THIS WEBSITE OR RELATED SERVICES. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER AGENCY ACCESS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS ARE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES) ARISING OUT OF USER'S AND/OR SUBSCRIBER'S USE OF, OR INABILITY TO USE, OR THE PERFORMANCE OF THIS WEBSITE, ITS CONTENT AND/OR DATA OR SERVICES PROVIDED IN CONNECTION THEREWITH, WHETHER OR NOT AGENCY ACCESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. LIMITATION OF LIABILITY
a) Relationship of the Parties. You and Agency Access are independent contractors. There is no partnership, agency or joint venture relationship between them.
k) Waiver. Failure to exercise, or any delay in exercising, any right or remedy provided under this or any agreement between You and Agency Access or by law shall not constitute a waiver of that or any other right remedy, nor shall it preclude or restrict any further exercise of that right or any other remedy in the future against You or any other individual or entity.
Eff. Date January 29, 2015