All purchases by you ("Client") from "Licensor" are subject to the terms
and conditions in this agreement ("Agreement").
All purchases from ("Licensor") are subject to the terms and conditions
in this document, which includes the Third Party Information Providers Specific
Terms & Conditions below. This agreement governs Client's use of services
provided by Licensor. In the event of conflict between these Terms & Conditions
and the Third Party Information Providers Specific Terms & Conditions,
the latter shall govern.
Pricing; Client Purchase Orders. Pricing, data elements, and file layouts are
agreed on a per order basis. The prices and rates for the services do not
include either shipping costs or applicable federal, state or local taxes,
and Client will pay or reimburse Licensor for such shipping costs and taxes.
These terms and conditions shall be superior to, and supersede, any conflicting
or inconsistent terms contained in any Client purchase orders or other Client
provided documents. No Client purchase order or other Client provided documents
shall be binding upon Licensor unless duly executed by Licensor and Client.
Acceptance or use of Licensor's data shall constitute acceptance
of this Agreement.
Computer Media Specifications; Regeneration of Data. In connection with any
services requiring Client to supply Client data, all such data shall be
delivered to Licensor at Client's expense, and shall be submitted in a
format and upon such computer media as will meet Licensor's computer
processing specifications. Client represents and warrants that Client
shall have obtained proper rights, ownership, agreement or approval
for the use and re-use of such data for processing prior to the delivery
of such data to Licensor. Client shall maintain one (1) usable copy of
all Client data as supplied to Licensor in order to enable Licensor to
regenerate such data. In the event of loss, damage or destruction to
any Client data while in Licensor's possession or control, Licensor's
liability shall be limited to the cost of regeneration of such data
utilizing the Client's copy of such data. In any event, Licensor's
liability for lost, damaged or destroyed house file data of Client
shall be limited to liquidated damages in the amount of
One Hundred Dollars ($100.00).
Non-conforming Services; Review of Interim Results. Licensor shall
perform services in accordance with Client orders and correct any
nonconforming services where the nonconformity results solely from
errors on the part of Licensor. Client shall review and approve
interim results provided by Licensor and inform Licensor in writing
of any nonconformance. Where Licensor is not informed of nonconformance,
Licensor shall be entitled to assume the correctness of the interim
results, and shall not be liable for the cost of correcting any
nonconformance approved in error. Client's failure to give Licensor
written notice of non-conforming services within thirty (30) days
of Licensor's performance of the services shall constitute final
acceptance and approval of the services by Client.
Payment Terms. Client will pay Licensor for the services in the amounts
agreed upon by Licensor and Client. Licensor's invoices will be deemed
to be correct and acceptable to Client unless Client advises Licensor
of disputed items within ten (10) days of their receipt. Payments shall
be made to Licensor within thirty (30) days of invoice date for all
Licensor services. If Client fails to pay any invoice (or any undisputed
portion of an invoice) in accordance with the foregoing terms, Client
shall also pay interest on the unpaid amount at the lesser of one and
one-half percent (1.5%) per month or the maximum amount allowed by law.
Except with respect to timely raised disputes concerning invoiced amounts,
Client's obligation to pay the invoiced amounts is absolute and unconditional
and not subject to any offset, defense or counterclaim.
One Time Use, List Rentals.
Unless otherwise agreed in writing signed by Licensor and Client,
Client is permitted to use a List provided by Licensor only once
and only for one of the following purposes: i) direct mail solicitations,
ii) conducting telephone solicitations, iii) conducting telephone surveys,
or iv) email marketing. This shall not, however, prevent Client's use of a
list provided by Licensor, or use of the licensed data, for Client's internal
analysis or for previous mail suppression. Licensor will include seed names
for the purpose of detecting unauthorized use.
Resale Prohibition; Broker/Redistributor Exception.
Except for authorized Resellers who have executed the appropriate
Reseller Rider, Client acknowledges that the Licensor data provided
to Client is proprietary and confidential to Licensor and Client
represents and warrants that it is not a Reseller. A "Reseller"
shall mean any individual or business which obtains data from one
or more third party sources and subsequently provides such data, or
information products and services derived from such data, to one
or more third parties. A broker shall not be considered a Reseller,
so long as the broker is acting on behalf of a single end user
and does not distribute data, or information products or services
derived from such data, to multiple recipients, but rather is
acting as a conduit for a particular end-user/consumer. Brokers are
subject to the applicable Special Terms attached hereto; there are
separate terms Brokers purchasing D&B business data. Client agrees
that it will not copy or otherwise reproduce any licensed data except
as necessary for back up or security purposes. Client further agrees that
it will not resell, or otherwise provide or disclose to any third party,
any licensed data, in whole or in part, for any purpose whatsoever.
Under no circumstances will Client attempt, directly or indirectly,
to discover or reverse engineer any confidential and proprietary criteria
developed or used by Licensor in performing Licensor services.
Special Terms; D&B Business File End Users and Brokers;
Services for Financial Institutions; Automotive Customers.
The following Clients are subject to the applicable Special
Terms attached hereto. Brokers as set forth above. Purchasers of
the D&B Business data (either Brokers/Redistributors and for
End Users). Clients who are a "financial institution" covered by
the Gramm-Leach-Bliley Financial Modernization Act. Any "Automotive
Customer" which for purposes hereof shall be collectively defined as
automotive manufacturing companies, their distributors, dealers,
automotive aftermarket parties, advertising agencies to the extent
related to work performed for an Automotive Customer, insurance companies
to the extent related to motor vehicle insurance, and bank and finance
companies to the extent related to the financing of motor vehicle purchases.
Applicable Special Terms shall be read as consistent with and supplementary
to these master terms if at all possible, but shall supercede these terms
in the event of unavoidable conflict.
List Quantity Policy. In an effort to improve billing efficiency, Licensor
has implemented a 5% List Quantity Policy. This policy is effective when
the list records you receive from us experience a 5% or less variance
due to edit errors, DMA do not mail records, Do Not Call records,Undeliverable
mail, Firm records or various assorted other reasons. In these instances, Licensor
reserves the right to bill you for the full amount of the original list select
quantity. However, if the list quantity variance is more than 5% short, then
you have the right to dispute the billed quantities and discuss with us
an appropriate adjustment.
FCRA; No Eligibility Decisions. Client understands that licensed data has not
been collected for credit purposes and is not intended to be indicative of
any consumer's credit worthiness, credit standing, credit capacity, or other
characteristics listed in Section 603(d) of the Fair Credit Reporting Act ("FCRA"),
15 USC Section 1681a. Client represents and warrants that it shall not use any
licensed data as a factor in establishing any consumer's eligibility for
(i) credit or insurance used primarily for personal, family or household
purposes, (ii) employment purposes, or (iii) other purposes authorized under
Section 604 of the FCRA, 15 USC Section 1681b or any similar statute. Client
agrees that it will not use any of the licensed materials for any purpose proscribed
under the FCRA.
Manner of Use; No Individual Look-ups. Client agrees that it will use the
licensed data provided for marketing purposes only in accordance with all
federal, state and local laws, applicable Direct Marketing Association
Guidelines (www.the-dma.org), and in a manner which gives due consideration
to matters concerning privacy and confidentiality. Client will not in any direct
mail solicitation, telephone solicitation or survey utilizing licensed data
refer to any selection criteria or any presumed knowledge about the recipient.
The licensed data may not be merged or incorporated with any other file without
the express written consent of Licensor. None of the licensed data may be used
to enhance a file or list owned by any third party, to develop any list,
enhancement or product or to prepare, publish, clean or maintain any directory.
Client and Client's customers agree not to maintain nor knowingly provide
licensed data to any customers who maintain any consumer household or business
database similar to the licensed data or offer any services described herein
based upon or derived from any such database without the prior written approval
of Licensor. Licensor may impose restrictions on the use of the licensed data
to manage the integrity thereof and Licensor's access to its data sources in
light of issues concerning privacy, good taste, and other consumer related issues.
Client shall strictly comply with all good faith data use restrictions now or
hereafter imposed by Licensor upon written notice. Neither Client nor Client's
customers shall use the licensed data in any application involving individual
look-ups of people including, without limitation, any application involving
individual look-ups of people pertaining to: (i) skip tracing functions; or
(ii) electronic directory assistance applications.
Licensed Data Access; Confidentiality. Client shall: (i) hold the licensed
data in confidence; (ii) provide access to the licensed data only to its
(a) employees, contractors and agents to whom access is required and to the
extent necessary for proper use hereunder, and (b) to its customers solely as
permitted hereunder. Licensor may seek injunctive or other equitable relief
against the breach or threatened breach of any of the foregoing covenants in
addition to any other legal remedies which may be available. Non-disclosure
of Source of Licensed Data or Relationship. Client shall not disclose to any
other party that Licensor is the source of the licensed data without the prior
written consent of Licensor, which consent will be issued only on a case-by-case
basis, and shall not be issued in the form of a blanket consent. Except as
disclosure is contemplated or necessary under the intent of this Agreement,
each party agrees that it will not disclose either expressly or by implication
the existence of this Agreement or the relationship created hereunder
to any third party without the express written consent of the other party.
Solicitations; Ad Copy; Script Retention and Review. Solicitation and ad copy
used by Client or Client's customers in connection with the licensed data:
(i) shall not disclose the source of the recipient's name and address;
(ii) shall not contain any indication that Client or Client's customers
possess any information about the recipient other than name and address;
and (iii) must be in good taste and of the highest integrity. Upon request
from Licensor, Client shall promptly deliver to Licensor a copy of any
solicitation or ad copy used in connection with the licensed data. Two copies
of each mail piece and/or telemarketing script used in connection with the
licensed data shall be retained by Client and Client's customers for at least
twelve (12) months after the applicable mail drop date or telemarketing
script use. Upon request from Licensor within such twelve (12) month period,
Client shall promptly deliver to Licensor the requested copies. Licensor may
require that mail pieces or telemarketing scripts be approved by Licensor
prior to any use with the licensed data.
Force Majeure. Licensor will not be liable to the Client for any delay or
interruption in performance as to any obligation hereunder resulting from
governmental emergency orders, judicial or governmental action, emergency
regulations, sabotage, riots, vandalism, labor strikes or disputes, acts of God,
fires, electrical failure, major computer hardware or software failures,
equipment delivery delays, acts of third parties, or delays or interruptions
in performance beyond its reasonable control.
Licensor Warranties. Licensor warrants to Client that: (i) the Licensor
services will materially conform to the corresponding job instructions;
and (ii) Licensor has the right to provide to Client, for the uses
authorized by this document, licensed data provided as a part of the
Licensor services. Licensor further warrants that it will make reasonable
commercial efforts to ensure that the licensed data delivered to Client
hereunder and information contained therein will be as complete, accurate,
and current as it can be in view of Licensor's customary method of compilation
or acquisition of such data and the nature and accuracy of Licensor's sources
for such data. HOWEVER, LICENSOR DOES NOT GUARANTEE THE ACCURACY
OR RELIABILITY OF SUCH DATA OR THE RESULT OR CONSEQUENCES FROM
THE USE OF SUCH DATA. All use of the licensed data and all materials
derived there from are on an "AS IS," "AS AVAILABLE" basis, and neither
Licensor nor Licensor's data providers shall be liable for any claim or
loss resulting from the content of, errors or omissions in, or the end
user's use of the information contained in or retrieved from the Licensor's
data. Client understands and acknowledges that the FTC and certain states
may require the purchase of lists providing a directory of consumers who
object to receiving certain outbound telephone solicitations ("Do-Not-Call lists").
Licensor agrees to provide Client with services that will purge consumers on the
various Do-Not-Call lists from the calling lists provided by Licensor to Client.
Client agrees to purchase such Do-Not-Call lists from the FTC and appropriate
states, and Client will indemnify and hold Licensor harmless from any third
party claims arising from calls placed to consumers who are on the various
Do-Not-Call lists. Licensor disclaims all responsibility for ensuring that
Client complies with the laws establishing the Do-Not-Call lists.
THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES LICENSOR
HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES. SUCH WARRANTIES
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR USE OR PURPOSE.
Limitation of Liability. Client acknowledges that data entry, data processing,
communication, and storage are subject to the possibility of human and machine
errors, omissions, delays, and losses, including inadvertent loss of data or
damage to media, which may give rise to loss or damage. Licensor undertakes
no liability to Client for any such errors, omissions, delays, or losses.
In no event shall Licensor be liable TO CLIENT OR ANY THIRD PARTY for
incidental, indirect, special, or consequential damages, or for lost profits,
savings, or revenues of any kind, or for lost data or downtime, or for printing costs
or postal charges, regardless of whether or not Licensor has been advised of
the possibility of such damages. LICENSOR'S CUMULATIVE LIABILITY
TO CLIENT FOR ALL CLAIMS RELATING TO, ARISING OUT OF, CONNECTED
WITH, OR RESULTING FROM THE SERVICES, THE DATA OR THIS LICENSE,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT,
INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE,
SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO LICENSOR
FOR THE SPECIFIC SERVICES OR DATA GIVING RISE TO SUCH CLAIM.
Indemnification. Client will indemnify, defend, and hold Licensor
harmless from and against any and all liabilities, damages, losses,
claims, costs, and expenses (including actual attorney's fees) arising
out of or resulting from Client's use of the licensed data or any third
party's use of the licensed data through Client including, without limitation,
(i) a failure to observe any use or data restriction set forth herein;
(ii) any claim alleging that any Client, end user who accessed the licensed data
through Client or Client's third party processor violated the legal rights of another
person by supplying Licensor with any Client data (iii) any claim by a third party
alleging that Licensor failed to perform the services properly; (iv) any
misrepresentation or breach of warranty by Client or (v) Client's nonperformance
of any obligations imposed on it herein or by any Licensor job instruction.
Governing Law. The validity and effect of this Agreement shall be governed by
and construed in accordance with the laws of the State of Nebraska without regard
to its conflict of laws rules. Client agrees that any causes of action relating
in any fashion to this Agreement shall be brought in the state or federal courts
located in Douglas County, Nebraska, which shall have exclusive jurisdiction
over such matters. Client submits itself to the personal jurisdiction of the state
and federal courts located in Douglas County, Nebraska, and waives any claim it
might possess that such location constitutes an inconvenient forum or improper
venue. Client agrees that service of process may be had on it by
U.S. Certified Mail, Return Receipt Requested.
Complete Agreement. This Agreement (as supplemented by work orders and
Licensor's pricing schedule, addendums and riders as anticipated and
compliant with this Agreement) sets forth the entire understanding of Client
and Licensor with respect to the subject matter hereof and supersedes all
prior letters of intent, agreements, covenants, arrangements, communications,
representations, or warranties, whether oral or written, by any officer,
employee, or representative of either party relating thereto. No amendment
or modification hereof shall be binding unless such amendment or
modification is in writing and acknowledged by both parties.
Severability; Waiver; Survival. Any provision of this Agreement that is
invalid, illegal, or unenforceable for any reason shall be ineffective
only to the extent of such invalidity, illegality, or unenforceability,
without affecting in any way the remaining provisions or rendering any
other provision of this Agreement invalid, illegal, or enforceable. The
waiver by either party, or the failure by either party to claim a breach
of any provision of this Agreement or to give notice with respect thereto,
shall not be held to be a waiver of any subsequent breach of such provision
or any other provision in this Agreement. The indemnity, liability and
non-disclosure provisions of this Agreement shall survive the termination
or expiration of this Agreement.
Broker Obligations. In the event Client is serving as a broker, Client further
agrees that it will make no use whatsoever of the licensed data other than
providing such data to the end user. Client represents and warrants that it
will fully apprise, and secure the written assent of, the end user with respect
to the obligations and restrictions set forth in this Agreement. Client agrees
to indemnify, defend and hold harmless Licensor and its officers, employees,
agents, affiliates, subsidiaries and data providers against and from any claims,
losses, expenses, damages and costs including without limitation, actual attorney's
fees, that may at any time be incurred by Licensor arising out of, or related to,
Client's failure to fulfill its obligations under this paragraph.
Services for Financial Institutions. In the event Client is a
"financial institution" covered by the Gramm-Leach-Bliley Financial
Modernization Act (the "Act"), Client and Licensor each acknowledge and
agree that this Agreement constitutes an agreement for Licensor to
perform services for Client as contemplated in Title V of the Act and
Regulation P issued under the Act ("Regulation P"). Without limiting the
generality of the terms of this Agreement, Licensor agrees that it shall
protect the privacy of Client's consumers and customers' non-public personal
information, as such terms are defined in the Act and in Regulation P
("Consumer Information") to at least the same extent that Client must
maintain that confidentiality under the Act and Regulation P. Without
limiting the generality of the foregoing sentence, Licensor shall not
disclose any non-public personal information to any third person
except as required in the performance of services under this Agreement,
and Licensor shall not use any non-public personal information except
to perform the services described under this Agreement. Licensor shall
establish administrative, technical and physical safeguards for Client's
customer records and information in Licensor' control or possession from
time to time. Such safeguards shall be designed for the purpose of:
(1) insuring the security of such records and information, (2) protecting
against any anticipated threats or hazards to the security or integrity
of such records and information; and (3) protecting against unauthorized
access to or use of such records and information that would result in
substantial harm or inconvenience to any Client customer. Such safeguards
shall be established in accordance with Section 501 of the Act and the
Interagency Guidelines Establishing Standards for Safeguarding Customer
Information adopted pursuant to Section 501 of the Act. Any changes to
the services required to comply with any change or revised interpretation
of the Act or Regulation P shall be handled as a service change and may
result in a change in the fees and charges which are payable by Client
for the services. Client shall provide Licensor with a copy of its privacy
policy established in accordance with the Act and Regulation P.
Automotive Customers. Client shall not market any vehicle data contained in
the licensed data to any "Automotive Customer" (which for purposes hereof
shall be collectively defined as automotive manufacturing companies, their
distributors, dealers, automotive aftermarket parties, advertising agencies
to the extent related to work performed for an Automotive Customer, insurance
companies to the extent related to motor vehicle insurance, and bank and
finance companies to the extent related to the financing of motor vehicle
purchases). Portions of the licensed data are derived from motor vehicle
information procured by Licensor or Licensor's data provider(s) from the
states. Such states impose data use restrictions with which Licensor
and Licensor's data providers must comply. Upon Licensor's notice to
Client, Client shall strictly comply with all data use restrictions now
or hereafter imposed upon Licensor or Licensor's data provider(s) by any state.
Client acknowledges having read this agreement and understands that
by signing this agreement Client agrees to be bound by the terms and conditions
contained herein. Client further agrees that, except for separate written agreements
between LICENSOR and Client, this agreement is the complete and exclusive
statement of the rights and liabilities of the parties.
D&B Business Data Special Terms
REDISTRIBUTOR THIRD PARTY INFORMATION PROVIDERS SPECIFIC TERMS AND CONDITIONS AGREEMENT
1. For Clients acting as Brokers of the D&B business data, hereinafter,
"Redistributor." The Redistributor has been appointed to be a non-exclusive
distributor of certain information (the "Information") derived from Third Party
Information Providers (each, a TPIP) received from D&B (Dunn & Bradstreet,
Inc. or "D&B")solely for the purpose of licensing such Information from
D&B in hard copy and machine readable media and re