TERMS AND CONDITIONS
ACCESS TO OR USE OF THE LISTS PROVIDED BY FIRST DIRECT INC (“FIRST DIRECT”). CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. BY INDICATING YOUR ACCEPTANCE BELOW, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOURSELF YOUR CLIENT (“END USER”), AS THE ULTIMATE LIST USER. FURTHER YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ACT ON THE END USER’S BEHALF IN RENTING THE LISTS FOR THE BENEFIT OF THE END USER. IN THE EVENT THAT YOU ACT BEYOND YOUR SCOPE OF AUTHORITY BY ACCEPTING THIS AGREEMENT ON BEHALF OF THE END USER, THEN YOU HEREBY AGREE TO GUARANTEE THAT ANY USE OF THE LISTS SHALL BE IN ACCORDANCE WITH ALL APPLICABLE LAWS, ORDINANCES, AND ANY OTHER REGULATIONS; AND THAT YOU SHALL BE RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY END USER. SELECT ACCPET BELOW IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS DESCRIBED HEREIN.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, SELECT “DECLINE” BELOW. IF YOU SELECT “DECLINE” YOU WILL NOT BE PERMITTED TO ACCESS THE LISTS. WITHIN THIS AGREEMENT “YOU” SHALL MEAN BROKER, AGENT, OR OTHER DESIGNATED PERSON WITH APPROPRIATE AUTHORITY TO BIND THE END USER; ANY OTHER REFERENCE TO BROKER, AGENT, OR OTHER DESIGNATED PERSON SHALL ALSO MEAN “YOU”.
Effective Date. The Effective Date of this Agreement becomes is the date on which You and/or End User first accept the terms and conditions contained herein (“Effective Date”). First Direct grants to you a limited, non-exclusive license to use its system (as defined below) subject to the terms and conditions contained herein.
Term. The term of this Agreement (“Term”) shall begin on the Effective Date and shall continue for a period of one (1) year, and thereafter shall automatically renew annually until You and/or End User no longer receive lists (“Lists”) from First Direct under this Agreement. At the end of the Term, this Agreement shall terminate. Upon the termination of this Agreement for any reason, End User shall, at First Direct’s option, destroy or return to First Direct the Lists and any copies thereof and certify in a writing within five (5) business days following such destruction or return that the End User has fully complied with the requirements of this Agreement. Upon termination, You and/or End User shall pay to First Direct any outstanding balances owed to First Direct within five (5) business days.
Fees/Payment Terms. By accepting the terms and conditions You and/or End User agree to pay First Direct for the Lists in accordance with the Master User Agreement You executed with First Direct.
Title. You and/or End User acknowledge that the Lists provided by First Direct are at all times, and shall remain the intellectual property of First Direct or the third party data owners (“Data Owners”) intellectual property which provided data and information constituting the List to First Direct. You and/or End User have no proprietary rights whatsoever in the List[s] provided to You and/or End User.
Permitted Uses, Prohibited Uses, Restrictions. Permitted Uses. The following is a list of permitted uses, and subject to the restrictions set forth in this Agreement:
• The List may be rented for one-time use or multiple uses as requested in one or more List Specification Form (Requests) which shall be incorporated in and is subject to this Agreement.
• A telephone phone call to follow-up on a mail drop is permitted within sixty (60) days and does not constitute a second use. For telemarketing purposes, one-time use is defined as usage within sixty (60) days of delivery.
• Using any List for any reason relating to an individual’s determination for
o (i) credit or creditworthiness;
o (ii) insurance, or
o (iii) employment.
• Using any List to advertise, sell, or exchange any illegal or illicit products, services or activities, including, but not limited to: sexual products or services; drug products or paraphernalia; pornographic materials; weapons; or services related to credit repair.
Restrictions. You and/or End User have a duty to thoroughly examine the List upon delivery, and to notify First Direct of any questions or problems within thirty (30) days of receipt. After the lapse of thirty (30) days First Direct is entitled to disregard any such communication.
If You and/or End User request or receive consumer “lifestyle” data with a List, such lifestyle data shall not be used in connection with any telemarketing activities.
All marketing communications for which a List is used shall (i) contain no reference of any selection criteria or alleged knowledge about the intended recipient of such solicitation (ii) contain no reference of the source from which You and/or End User received the recipient’s information; (iii) strictly comply with any and all applicable federal and state and local laws, ordinances, rules and regulations; and (iv) strictly comply with all applicable privacy policies, ethical use and Fair Information Practices as published by the Direct Marketing Association (“DMA”). You and/or End User shall not use the List, in whole or in part, in the development of (i) any application outside the scope of this Agreement; or (ii) any data products or services that are intended for the use of third parties, including, but not limited to: any list enhancement or data appending service or product. First Direct reserves the right to review and pre-approve Your and/or End User’s intended use of the List prior to, or as a condition precedent to, accepting any order. The Data Owners may require First Direct to comply with certain restrictions and requirements placed upon the use of the List. You shall also strictly comply with all restrictions and requirements Data Owners, now or hereafter, impose upon First Direct and communicated in writing to You and/or End User.
The List contains programing designed to detect any unauthorized use or duplication thereof; You and/or End User agree not to tamper with, remove from, or in any modify or otherwise change the programing employed for such purpose, in its mailing lists. You and/or End User agree to pay for the full multiple use charge for Your and/or End User’s unauthorized use or duplication of the List. You and/or End User shall be responsible for all materials intended for mailing to names/addresses on the List provided by First Direct. You and/or End User further agree to (i) retain true and accurate copies of any and all mail materials sent, or intended to be sent to any and all recipients on Lists provided to you from First Direct for a period of no fewer than six (6) months after the stamped mail date; and (ii) provide one (1) copy of all such materials to First Direct upon request.
The receipt, in whole or part, of First Direct’s proprietary yellow pages heading codes, core micro-codes, or First Direct’s SIC schema (collectively, the “Codes”) as part of the List licensed pursuant this Agreement, allows for the temporary use of such Codes, and does not convey any proprietary or ownership rights to the Codes. The use of the Codes must conform to the permitted uses described herein. You and/or End User are strictly prohibited from modifying, adapting, translating, reverse engineering, de-compiling, disassembling, or otherwise attempting to ascertain, or otherwise reconstruct, the technology or procedures fundamental to First Direct’s Codes; further, You and/or End User shall not instruct, permit or otherwise allow, any third party to perform any such action. First Direct reserves all rights available for failure to comply to with this section, including but not limited to causes of action that may be brought under state and federal law for unfair trade practices, trademark and/or copyright infringement. First Direct may, but is not required to, notify You and/or End User in writing of a suspected failure to comply with this section.
Telephone Data. The receipt of such Telephone Data on a List may be used for either (i) Your and/or End User’s marketing programs, including house file enhancements, mailing list screens, modeling and list analysis; or (ii) Your and/or End User’s reference applications, including an internal reference tool for the purpose of verifying the name and address information contained within Your and/or End User’s internal customer databases and in Your and/or End User’s on-line look-up applications as part of Your and/or End User’s own electronic directory assistance programs. Using Telephone Data for a reference application, such use shall be subject to additional terms contained in a separate schedule attached hereto and incorporated herein by reference. Using Telephone Data in connection with any marketing program, such use shall be subject to all other applicable terms and conditions of this Agreement; and in the event that You and/or End User improperly use Telephone Data in connection therewith, You and/or End User agree to defend, indemnify and hold harmless First Direct to the full extent permitted by law.
Consumer Inquiries. You and/or End User are solely responsible for accepting and responding to communication initiated by any consumer (“Consumer Inquiries”) arising out of, or in any way related to, Your and/or End User’s use of the List. You and/or End User agree that it will provide “in house” suppression, to consumers upon request by consumer from future marketing initiatives by You and/or End User. You and/or End User agree to honor any such request by suppressing such consumer information from any marketing program. Failing honor any consumers’ request not to receive future marketing initiatives, First Direct may cease delivery of any future List(s), discontinue access to any current List(s) and/or terminate this Agreement immediately without written communication regarding First Direct’ decision to do so. You and/or End User agree to refrain from making any reference to First Direct, whether written or oral or contained in any scripts, to a consumer in response to Consumer Inquiries. However, You and/or End User may make written request to First Direct seeking approval to give such reference in response to Consumer Inquiries; such approval shall not be unreasonably withheld.
Suppression Files. First Direct’ Consumer List products are built using specific Suppression Files designed for that Product, including the DMA’s Mail Preference and Telephone Preference Service files, e-mail suppression files, First Direct opt-out files, FTC DNC files and the state Attorney General’s suppression files, to flag individual consumers as individuals who have opted out of receiving marketing solicitations. First Direct does not warrant or in any way guarantee that the information contained on the List(s) provided reflects the most current information regarding individual consumers, nor does First Direct represent that the list provided contains flagged individuals, or removed individuals from the List(s). You and/or End User specifically acknowledge and recognize that First Direct has expressly denied any warranty or guarantee related to flagging, removing, or otherwise indicating to You and/or End User that an individual consumer has opted out. First Direct disclaims any liability for actions taken by You and/or End User that violate any rule, regulation, law or ordinance suppressing Data that is otherwise found on any List provided to You and/or End User.
If You and/or End User conduct telemarketing practices in a state requiring registration, You and/or End User represent that the registration requirements of such state have followed, and that You and/or End User are appropriately registered, and that such registration is in good standing, to conduct telemarketing in that state. You further acknowledge that it is Your and/or End User’s sole responsibility to ensure that the most current suppression information has been applied to its files before such files are used for any marketing program.
First Direct disclaims any liability for any failure to comply with the terms of this section. You and/or End User agree to defend, indemnify and hold harmless First Direct to the full extent permitted by law for any failure to honor a consumer’s request to not to receive future marketing initiatives, or to comply with the obligations set forth in this Section.
Delivery Of The Lists. First Direct shall provide the Lists via the www.nationallistcounts.com System, or otherwise as the parties may from time to time agree. You acknowledge that certain technical, mechanical or software failures may render the First Direct, www.nationallistcounts.com System or telecommunications link unavailable for periods of time; and as a result, First Direct may be unable to provide advance notice of such downtime. First Direct shall use reasonable efforts to provide you with advance notice of any scheduled downtime. First Direct shall not be held liable for any damages stemming from delay in delivering the lists.
Warranty Disclaimer. FIRST DIRECT AND THE DATA OWNERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER WITH RESPECT TO THE SERVICES, LISTS, OR THE MEDIA ON WHICH THE LISTS ARE PROVIDED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL FIRST DIRECT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.
Indemnification. You agree to defend, indemnify, and hold harmless First Direct from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys’ fees, arising out of or resulting from Your misuse or unauthorized use of the List or Your request for First Direct to investigate and assist in responding to regulatory or other third party inquiries into Your use of the List or the services First Direct performs for You. First Direct shall give You prompt written notice of any claim of which it has knowledge, and shall provide End User with the assistance, information and authority necessary to perform Your obligations under this Section.
Audit/Non-Compliance. First Direct reserves the right to audit any and each of your computer systems and applicable business records to ensure your compliance with the terms and conditions of this Agreement. Similarly, First Direct may monitor your use of the Lists. First Direct reserves the right, in its sole discretion, to immediately suspend your use of the Lists in the event of any suspected or actual violation of the terms of this Agreement. In the event an audit reveals that you are not in compliance with the terms and conditions of this Agreement, you shall be responsible for the costs of the audit, as well as any and all damages resulting from such non-compliance including, without limitation, any special, incidental, indirect, or consequential damages whatsoever (including punitive damages and damages for loss of goodwill).
Force Majeure. Neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, act of public enemy, war, riot, flood, civil commotion, insurrection, severe weather conditions, or any other cause beyond the reasonable control of the party delayed.
Electronic Communication. The parties may communicate with the other by electronic means. The parties agree to the following for all electronic communications: an identification code (“USERID”) contained in or with an electronic document is legally sufficient to verify the sender’s identity and the document’s authenticity; an electronic document that is sent with or contains a USERID is a signed writing; and an electronic document, or any computer printout of it, is an original when maintained in the normal course of business.
General Provisions. If any part of this Agreement is found void and unenforceable, the balance of the Agreement shall remain valid and enforceable according to its terms. This Agreement shall automatically terminate upon failure by you to comply with its terms. This Agreement may only be modified in writing, signed by an authorized representative of First Direct. This Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Please indicate your acceptance or declination of the foregoing terms and conditions by clicking on the appropriate box below.