Terms & Conditions
The McCord List, Inc. Terms and Conditions.
Influencer reach estimates are modestly based on the assumption that each TML influencer has 5,000 followers. In reality, some many of our influencers 10s and hundreds of thousands of followers…event millions. Some TML influencers have less than 5,000 followers, but a highly engaged and specific audience. We have made a conservative and modest blend for estimate purposes.
Estimated reach is the potential audience of TML and our influencers followers. TML’s estimated reach in no way a guarantees all, or any, influencers will post and reach their estimated audience outlined in this agreement. However, The McCord List will put best efforts to ensure the best experience for our partners and encourage as many experiences and share as possible.
Our goal is to have an enduring relationship with our partners/clients by creating expectation exceeding experiences.
All databases, source code, proprietary analytics and platform elements are the property of The McCord List, Inc.
We take the privacy of the The McCord List Community members seriously and strictly protect all user information that is given to The McCord List.
Giveaway items as stated in the above project statement will be supplied by the client. In the event that such items cannot be provided by the client, shipping costs/giveaway items purchase price will be budgeted and presented to the client for approval to bill as a pass through expense.
The McCord List will share screen shots of product promotion via influencer postings, press images, photography. Links to postings on website and social media will be provided along with web URLS, hash tags and social media handles.
Due to internet privacy rights, The McCord List will not share proprietary contact information or databases before or after the promotion or specific contact names, telephone numbers, email addresses or any other private contact information of members of our community.
Organic meet and greets will occur between our clients and our community influencers and/or celebrities. Parties are welcome and encouraged to develop personal relationships in these natural opt in settings.
The McCord List will make best efforts to ensure influencer sharing and promotion and cannot guarantee impressions or placements by influencers in the promotion beyond those channels directly owned and controlled by The McCord List (e.g. showroom, e-blast, TML social media, TML influencer communications and TheMcCordList.com).
The McCord List does not engage in direct sales, sweepstakes or contest promotion.
These terms and conditions apply to all work performed and deliverables provided by The McCord List, Inc. (“The McCord List”) under the Project Statement to which these terms and conditions are attached (“Project Statement”) and will be binding on Client upon confirmation of the order by Client or upon delivery to Client of any deliverable set forth in the Project Statement. THESE TERMS TAKE PRECEDENCE OVER CLIENT’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS WHETHER CONTAINED ON A WORK ORDER OR OTHER DOCUMENTATION, WHICH THE MCCORD LIST OBJECTS TO AND HEREBY REJECTS. ANY CHANGES TO THE TERMS MUST SPECIFICALLY BE AGREED TO IN A WRITING EXECUTED BY THE MCCORD LIST AND CLIENT BEFORE BECOMING BINDING ON EITHER PARTY.
1. Project Statements.
1.1 Project Statements.
A Project Statement shall only be binding if agreed to in writing by both Parties. The McCord List shall perform the services (the “Services”) and deliver the deliverables (the “Deliverables”) described in each Project Statement. The McCord List’s timely and proper performance of its obligations under the Project Statement is wholly contingent and dependent upon the nature and contents of those Client materials set forth in the Project Statement and the time period in which such materials are supplied to The McCord List.
1.2 Third Party Products.
In connection with the Deliverables or the Services, The McCord List may purchase and/or license on behalf of Client certain third party materials and technology, including without limitation, applications, software, illustrations, finished art, mechanical production, photography or video production, printing, display materials, premiums, design services, outside production costs or similar (the “Third Party Products).
Deliverables shall be deemed accepted five (5) days after delivery to Client unless Client, within that time period, notifies The McCord List’s that the Deliverables fail to conform to its specifications.
1.4 Completion Date.
The anticipated date of completion shall be set forth in the Project Statement (the “Completion Date”). Client acknowledges and agrees that the Completion Date is an estimated date only, and that The McCord List shall use commercially reasonable efforts to complete the work by such Completion Date. Client acknowledges that The McCord List’s timely performance of its obligations under the Project Statement is wholly contingent and dependent upon the nature and contents of those Client materials set forth in the Project Statement and the time period in which such materials are supplied to The McCord List, and that The McCord List shall have no liability whatsoever to Client for any delay in completing the Project Statement that is due to Client or under Client’s control.
2. Fees and Expenses; Taxes.
2.1 Fees and Taxes.
Client shall pay The McCord List the fees, costs and expenses (collectively, the “Fees”) identified in the Project Statement. The Fees billed to Client by The McCord List are exclusive of taxes and other similar charges, and Client shall be solely responsible for and shall pay all duties, fees, sales (unless an exemption certificate is furnished by Client to The McCord List), use, value-added, and similar taxes (except for taxes imposed on The McCord List’s net income) or furnish The McCord List with evidence acceptable to the taxing authority to sustain an exemption therefrom. Except as set for in the Project Statement, The McCord List shall invoice Client monthly for Fees. Client will make all payments of all Fees to The McCord List within thirty (30) days after the Client’s receipt of the applicable invoice therefor, unless other payment terms are set forth in the Project Statement. All such payments hereunder shall be made by Client free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Fees to The McCord List will be Client’s sole responsibility.
Expenses incurred in support of work performed by The McCord List on behalf of a Client are passed through to the Client. The McCord List will contact the Client for prior approval before making purchases in excess of five hundred dollars ($200) or an alternative amount specified by the Client. The McCord List travel and lodging expenses are passed through to the Client. Travel and lodging expenses include lodging, meals, airfare, automobile rentals and ground transportation or mileage.
3. Intellectual Property.
The McCord List (or its licensors) shall at all times own all right, title and interest in and to all code (both object code and source code), tools, routines, programs, designs, blog applications, and other social media tools and applications, databases, blogger and influencer lists and associated data, technology, ideas, processes, formulas, techniques, improvements, illustrations, art, mechanical productions, inventions and works of authorship, including, without limitation, related documentation which were previously owned or licensed to The McCord List or which are The McCord List, developed, conceived or reduced to practice by The McCord List and all Intellectual Property Rights (defined below) contained therein (collectively, the “The McCord List IP”). Subject to these Terms, including, without limitation, the payment of by Client of applicable Fees, The McCord List hereby grants to Client a perpetual, nonexclusive, worldwide, nontransferable (except to a permitted assignee pursuant to Section 9.10) with no right to sublicense, royalty-free, fully paid up license to use the The McCord List IP solely for Client’s internal business purposes, and solely in conjunction with and solely as incorporated by The McCord List into the Deliverables and not on a standalone or any other basis.
Notwithstanding the foregoing, Client shall own all Intellectual Property (defined below) furnished to The McCord List by Client hereunder (the “Client IP”), and shall, upon payment to The McCord List of applicable Fees, obtain title to the Deliverables and Third Party Products acquired on behalf of Client by The McCord List per the Project Statement; provided that Client shall only have a license to third party software pursuant to the applicable licensor’s end user license agreement for such software. As used herein, “Intellectual Property” or “Intellectual Property Rights” collectively means any and all patents, patent registrations, patent applications, business processes, copyrights, data rights, trademarks, trade names, service marks, service names, trade secrets, mask works, moral rights, know-how or any other similar right arising or enforceable under the laws of the United States, any other jurisdiction, or bilateral or multi-lateral treaty regime.
Except as expressly permitted herein or in the Project Statement, Client shall not, and shall not permit any of its employees or any third party to: (i) use, reproduce or distribute the The McCord List IP in any manner inconsistent with the license grants set forth in Section 3.1 above; (ii) modify, translate into any code or language, or make any derivative work of the The McCord List IP or any parts thereof; (iii) decompile, disassemble, reverse engineer or otherwise attempt to reconstruct, discover or use the source code of the The McCord List IP for any purpose or provide or make available the source code to any third party, (except to the limited extent, if any, permitted under applicable law for interoperability purposes); (iv) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the The McCord List IP to or for the benefit of any third party; or (v) remove any identification, copyright or other proprietary notice from the The McCord List IP. Client shall reproduce all such notices on all copies of the The McCord List IP.
4. Warranties and Disclaimer.
4.1 Client Representations and Warranties.
Client represents, warrants, and covenants on a continuing basis that: (i) it has all right, title and interest, and all licenses necessary and appropriate to permit The McCord List to perform the Services and the delivery of the Deliverables described herein, (ii) Client is solely responsible to and shall ensure that the Services and the Deliverables (including, without limitation, their use and results) are compliant with all applicable laws and regulations; (iii) Client’s performance of its obligations hereunder, and its use of the Deliverables, shall comply with all applicable laws and regulations, and shall not violate or infringe any Intellectual Property Rights, publicity, privacy, confidentiality, contractual or other rights, of any third party; and (iv) the Client IP shall not violate or infringe any Intellectual Property Rights, publicity, privacy, confidentiality, contractual or other rights, of any third party.
ALL SERVICES AND THIRD PARTY PRODUCTS ARE PROVIDED TO CLIENT SOLELY ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND; AND The McCord List MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND EXPRESSLY DISCLAIMS, ANY EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE) REGARDING The McCord List OR ANY DELIVERABLE, SERVICE OR OTHER MATTER.
5. Limitation of Liability.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS, The McCord List’S AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY UNDER ALL PROJECT STATEMENTS BETWEEN The McCord List AND CLIENT IS LIMITED TO THE AMOUNTS PAID BY CLIENT TO The McCord List UNDER THE PROJECT STATEMENTS DURING THE TWELVE-(12)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FURTHERMORE, The McCord List WILL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF The McCord List HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN THOUGH NO EXPRESS OR IMPLIED INDEMNITY IS PROVIDED TO CLIENT HEREUNDER. The foregoing provisions limiting damages and excluding consequential damages will apply notwithstanding the failure of the essential purpose of any limited remedies for breach of warranty set forth herein. Any action brought under ThIS PROJECT STATEMENT must be brought not more than one (1) year after the cause of action arose.
Client shall indemnify, defend and hold The McCord List and its officers, directors, shareholders, employees, agents and representatives (each an “The McCord List Indemnitee”) harmless from and against any and all suits, actions, losses, demands, claims, damages, or other liabilities (including reasonable attorney’s fees and costs) that may be suffered or incurred by any The McCord List Indemnitee arising from or relating to: (i) Client’s use or misuse of the Deliverables, The McCord List IP, or the Services; (ii) any breach of these Terms or the Project Statement by Client; or (iii) any use of any Client-provided materials.
It is expected that the Parties will disclose to each other certain confidential information (“Confidential Information”) and each Party recognizes the value and importance of the protection of the other’s Confidential Information. All Confidential Information of one Party (the “Disclosing Party”) that is disclosed to the other Party (the “Recipient”) shall remain the sole property of the Disclosing Party (or its licensors), which shall own all rights (including, without limitation, Intellectual Property Rights), title, and interest in and to such Confidential Information. Only information which is identified as confidential pursuant to the next paragraph shall be deemed Confidential Information hereunder; except that Client acknowledges and agrees that the The McCord List IP constitutes The McCord List’s Confidential Information, and The McCord List acknowledges and agrees that the Client IP constitutes Client’s Confidential Information.
A Disclosing Party may designate information as confidential by: (i) marking written information or other tangible media as “Confidential” or with a similar legend prior to disclosure; (ii) indicating in the visual display of information that such information is confidential; (iii) identifying oral information as confidential at the time of disclosure to Recipient; or (iv) notifying the Recipient in writing prior to disclosure that certain specifically identified types of information are considered to be confidential.
Each Recipient agrees that at all times and notwithstanding any termination or expiration of the Project Statement it will hold in strict confidence and not disclose to any third party Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Disclosing Party’s Confidential Information only for the purpose of performing Recipient’s obligations hereunder, and not for any other purpose, whether for the Recipient’s own benefit or the benefit of any third party.
The obligations of the Recipient regarding the Disclosing Party’s Confidential Information shall not apply to any materials or information which the Recipient can demonstrate, through documented evidence: (i) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available; (ii) is known by the Recipient at the time of receiving such information as evidenced by its records; (iii) is hereafter furnished to the Recipient by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the Recipient without access to or use of any Confidential Information of the other Party; or (v) is the subject of a written permission to disclose provided by the Disclosing Party to the Recipient. Notwithstanding any other provision herein, disclosure of Confidential Information shall not be precluded if such disclosure (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding Party shall first have given notice to the other Party hereto in order that such other Party may obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued and the responding Party uses reasonable efforts to have such information be treated as confidential and under seal; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under these Terms, but only to the extent that any such disclosure is necessary.
7.5 Retained Rights of The McCord List.
Notwithstanding anything to the contrary herein, The McCord List’s use or dissemination of information of general application (not identifiable with Client and not specifically applicable to Client’s business) which may be retained in the unaided memory of The McCord List personnel, including formulae, patterns, compilations, programs, devices, methods, techniques or processes, shall not be considered a breach of The McCord List’s confidentiality obligations or any other provision herein.
8. Term and Termination.
8.1 Term; Termination.
Either Party may terminate the Project Statement for convenience, for any or no reason, at any time upon sixty (30) days prior written notice to the other Party. Either Party may terminate the Project Statement for cause upon written notice to the other Party, if the other Party breaches these Terms and does not cure such breach within thirty (30) days following receipt of written notice thereof from the non-breaching Party; provided, however, that The McCord List may terminate the Project Statement immediately upon written notice if Client breaches Section 3 or 7. Such right to terminate the Project Statement for cause shall be in addition to any other remedies available to the terminating Party at law or in equity.
8.2 Effect of Termination.
Upon termination of the Project Statement for any reason: (i) Client and The McCord List shall promptly return or destroy all Confidential Information and other property of the other Party and upon request, shall certify in writing to such return and/or destruction; and (ii) all amounts due to The McCord List under the Project Statement shall become immediately due and payable, and Client shall pay such amounts pursuant to Section 2.
Any payment obligation of a Party, the rights and obligations contained in Sections 2 (“Fees and Expenses; Taxes”), 3 (“Intellectual Property”), 4 (Warranties and Disclaimers”), 5 (“Limitation of Liability”), 6 (“Indemnity”), 7 (“Confidentiality”), 8.2 (“Effect of Termination”) and 9 (“General”) and any other terms which contemplate continuing effectiveness shall survive the termination or expiration of the Project Statement for any reason.
Client hereby grants to The McCord List a non-exclusive, worldwide, perpetual, royalty-free right and license to use Client’s trademarks, trade names and other designations in or on any promotion or publication by any medium whatsoever for the purpose of identifying Client as an The McCord List Client and The McCord List may describe the work performed for Client in or on any promotion or publication by any medium. The McCord List’s use of Client’s trademarks shall be in accordance with any trademark and usage guidelines provided by Client to The McCord List. If The McCord List wishes to describe the work performed for Client in any public medium, such use shall be subject to Client’s pre-approval, which shall not be unreasonably withheld.
Nothing expressed or implied herein shall be deemed to restrict either Party’s right or ability to: (i) directly or indirectly sell, license, use, promote, market, exploit, develop or otherwise deal in any product or service of any kind in any location; or (ii) enter into any business arrangement of whatever nature or description, including without limitation arrangements similar to those contemplated herein, with any other entity in any location.
9.3 Independent Contractor.
The McCord List’s relationship with Client is solely that of an independent contractor, and nothing herein is intended to, or should be construed to, create a partnership, agency, representation, joint venture or employment relationship between the Parties.
9.4 Governing Law; Forum; Equitable Relief.
The Project Statement and the Parties’ rights and obligations hereunder shall for all purposes be solely and exclusive governed by, and construed and enforced under, the laws of the State of California without reference or giving effect to any conflict of laws or other principles which would result in the application of a different body of law. Any and all disputes arising hereunder, which cannot be resolved by the Parties, shall be brought and resolved solely and exclusively in the state and federal courts located in California, and the Parties hereby irrevocably consent to venue in, and the exclusive jurisdiction of such courts. Notwithstanding the foregoing or anything else expressed or implied herein, either Party may, at any time, seek injunctive or other equitable relief, wherever such Party deems appropriate, to protect or enforce such Party’s rights hereunder. The prevailing Party in any proceeding or lawsuit shall be entitled to receive its costs, expert witness fees, and reasonable attorneys fees, including costs and fees on appeal.
All notices or reports permitted or required hereunder shall be in writing and shall be by personal delivery, facsimile transmission, or by certified or registered mail, return receipt requested, and deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the addresses set forth on the Project Statement or such other address as either Party may specify in writing.
If any provision of these Terms are unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions.
The failure of either Party to require performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
9.8 Force Majeure.
Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, shortages of electric power or other utilities, labor conditions, earthquakes, material shortages, or any other cause beyond the reasonable control of such Party.
Client may not assign or delegate its rights or obligations hereunder, in whole or in part, without The McCord List’s prior written consent. Any assignment in violation of the foregoing limitation will be null and void. The McCord List may freely assign or delegate its rights and obligations hereunder, in whole or in part, to any third party; provided however, that such third party assignee or delegatee agree in writing to be bound by the terms hereof. These Terms will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
9.10 Entire Agreement.
These Terms (including the Project Statement) completely and exclusively states the agreement of the Parties regarding its subject matter. It supersedes, and its terms govern, all prior or contemporaneous proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. These Terms shall not be modified except by a subsequently dated written amendment signed on behalf of The McCord List and Client by their duly authorized representatives.