1. LICENSE The website and services are offered and made available by DirectMail.com a division of DM Group, Inc (known herein as DMC). Through the DMC website customers may order lists containing names, postal addresses, and/or phone numbers for consumers or businesses meeting the criteria selected by the customer ("List"). You ("Customer") must provide the information requested below and agree to the terms and conditions of this License Agreement ("Agreement") before ordering a List. DMC grants Customer, on the terms and conditions set forth herein, a limited, nonexclusive, nontransferable license to use the List obtained using the DMC website. Each List obtained may be used for the number of times specified and permitted by the DMC website and must be used within 30 days of delivery of the List to the Member area of the DMC website ("Delivery"). Data Axle ("DA") provides DMC with access to its proprietary data and certain website hosting services, enabling this DMC service. DA shall be a third party beneficiary to this Agreement.
2. DELIVERY Lists are delivered electronically to a secure area of the DMC website. DMC will notify Customer by email when Delivery has been made. The List will remain on the website for 30 days. Customer acknowledges that certain mechanical or software failures may render the Internet or email unavailable for periods of time without warning or notice and DMC assumes no responsibility of any kind for any delays caused by such failures.
3. PAYMENT Payment is by credit card. Customer must enter their credit card information for each List purchase. Customer represents and warrants that it is an authorized user of the credit card information provided for each order submitted. DMC reserves the right to reject any order placed by Customer if the credit card information provided cannot be processed for any reason.
4. REFUNDS Refunds: DMC WILL NOT issue refunds for mailing lists purchased through the Site. The mailing list purchased is provided to the customer and based on the specific criteria supplied by the customer. When you purchase a mailing list, you are bound to the list rental agreement. Termination of the agreement will only be authorized if the Company is at fault. This is to protect the interests of the Company and other customers of the Company.
5. USE AND RESTRICTIONS
a) One Time Use, Permitted Uses: Unless permitted with the appropriate upcharge for two-time and/or multiple (three plus times) use through the DMC website, Customer is licensed to use, and certifies that it will use, the List provided by DMC for the number of uses permitted and only for one of the following purposes: i) direct mail solicitations, ii) conducting telephone solicitations, iii) conducting telephone surveys, or (iv) direct mail surveys. This shall not, however, prevent Customer's use of the List for Customer's internal analysis or for previous mail suppression. Seed names may be included to detect unauthorized use.
b) Compliance with Guidelines and Laws: Customer acknowledges that different states and jurisdictions may have guidelines and laws affecting its use of the List and any information or data provided therein. It is Customer's responsibility to learn of such guidelines and laws, and comply with them. DMC, its data providers and affiliates, disclaim all responsibility for Customer's compliance with such guidelines and laws including any obligation to inform Customer about any restrictions on use of the List. Customer agrees that it will use the Listprovided under this Agreement in accordance with all Federal, state and local laws, relevant Direct Marketing Association Guidelines, and in a manner which gives due consideration to matters concerning privacy, confidentiality, good taste, and other issues to which individual and business consumers may be sensitive. Customer will not in any direct mail solicitation, telephone solicitation or survey refer to any selection criteria or any presumed knowledge about the recipient, nor will Customer disclose the source of the recipient's name, address, or any other information. The List may not be merged or incorporated with any other file without the express written consent of DA. The List, or any information or data provided therein, may not 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 or look-up service.
c) Geographical Limitation: Customer represents and warrants that it will only use the List within the United States and its territories and will not use or transfer the List, or any information derived from the List, in whole or in part, outside the United States or its territories for any purpose.
d) Resale Prohibited: Customer represents and warrants that it will not resell, broker, or otherwise disclose the List to any third party, in whole or in part, for any purpose whatsoever. Customer agrees that it will not copy or otherwise reproduce the List, information or data provided except for back up or security purposes. Under no circumstances will Customer attempt, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by DMC in preparing the List.
e) Audit: Customer will maintain current, accurate and complete books and records relating to its use of the List for a period at least twelve (12) months after each marketing communication. In addition to financial detail, Customer shall maintain a file of the latest twelve (12) months of communications, to include sample mail pieces, telemarketing scripts, ad copy or other communications which Customer has used, and a list of each state to which the marketing communication has been made using the Lists. DMC or DA, or any representative either designates, will have the right to examine and copy or make extracts from all such books and records and any source documents used in preparation thereof, at any time during normal business hours, provided DMC or DA gives Customer written notice at least three (3) business days prior to any such examination.
f) FCRA: Customer understands that the information and data provided in the List 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 § 1681a. Customer agrees that it shall not use any information or data from any List 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 § 1681b or any similar statute.
6. DISCLAIMER OF WARRANTIES CUSTOMER EXPRESSLY AGREES THAT USE OF THE LIST IS AT CUSTOMER'S SOLE RISK. THE LIST IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DMC AND DA EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY. DMC AND DA MAKE NO WARRANTY THAT THE LIST WILL MEET YOUR REQUIREMENTS, OR THAT DELIVERY OF THE LIST WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES DMC MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LIST, THE ACCURACY OR RELIABILITY OF ANY DATA, OR THAT DEFECTS IN THE LIST WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM DMC OR DA, OR THROUGH THE SERVICES PROVIDED, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Customer acknowledges that certain laws, rules and regulations restrict telemarketing activities, including those that permit consumers to give notice that they do not wish to receive sales solicitation calls. Due to the varying and changing nature of such laws, rules and regulations, DMC makes no warranty that the names or telephone numbers of such individuals have been identified on or deleted from the List provided.
7. LIMITATION OF REMEDIES DMC's and/or DA's sole liability hereunder regardless of the form of action, will be the reperformance of the services or refunding of any fees Customer has paid for the List, as DMC or DA may elect.
8. LIMITATION OF LIABILITY NEITHER DMC NOR DA SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE LIST, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF DMC OR DA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DMC OR DA, JOINTLY OR SEVERALLY, BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS RECEIVED FROM CUSTOMER.
9. INDEMNIFICATION Customer shall indemnify, defend and hold DMC and DA harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including attorneys' fees) arising out or resulting from Customer's use of the List.
10. OWNERSHIP As between Customer and DMC, the List will continue to be the exclusive property of DMC. This transaction shall not be deemed to convey any right, title or interest, including patent, copyright or other proprietary right, in or to such List or any information or data therein.
11. MODIFICATIONS DMC reserves the right to modify or discontinue the List Link website services at any time. The terms and conditions of this Agreement may be amended from time to time, and new use restrictions may be added, by DMC in its sole discretion. DMC will give notice of any changes in the terms and conditions. Placement of an order for a List constitutes acceptance of the new terms and conditions by Customer.
12. TERM AND TERMINATION Placing of an order for a List, and/or use thereof, constitutes full acceptance of all of the terms and conditions contained herein. DMC reserves the right to terminate this Agreement immediately for cause, or to terminate this Agreement with or without cause upon 30 days notice to Customer. DMC shall not be liable to Customer for termination of this Agreement. Use of any List following termination will remain subject to all terms and conditions of this Agreement.
13. CONFIDENTIALITY DA hereby identifies as proprietary and confidential its various databases and the data contained within such databases as well as the methods utilized by DA in gathering, compiling and maintaining such data and preparing the Lists. Customer will take reasonable precautions to assure that all confidential information disclosed to it by DA is held in strict confidence and disclosed only to those of its respective employees whose duties reasonably require access to such information. Customer will take suitable precautions to prevent loss, compromise, or misuse of any media containing the List, or any data contained therein, while in the possession of either party. Except as required by law, Customer agrees that the List and any other information or data provided by DA will be maintained in strict confidence and will not be copied, disclosed, sold or otherwise made available to any third parties. Customer shall provide for physical security of the List obtained from DA with the same degree of care (provided that such is at least a reasonable degree of care) that Customer uses to protect its own most sensitive data. Customer shall not grant access to the List, and any other information or data provided by DA, to individuals incarcerated in prisons or correctional institutions.
14. RETAINED OWNERSHIP Customer acknowledges that DA has expended substantial time, effort and funds to gather and compile its various databases and provide the Lists which are the subject of this Agreement and further acknowledges that, as between Customer and DA, the data provided by DA hereunder is, and shall remain, the proprietary property of DA. Nothing contained in this Agreement shall be interpreted to convey to Customer or to any other party any right, title or interest in the Lists, including any patent, copyright or other proprietary right. Neither party will use, or permit their respective employees, agents and subcontractors to use, the trademarks, service marks, logos, names or any other proprietary designations of the other party, or the other party's affiliates, whether registered or unregistered, without such other party's prior written consent.
15. RELATIONSHIP The parties will perform all services hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties. Neither this Agreement nor any provisions set forth herein is intended to, or shall, create any rights in or confer any benefits upon any person other than the parties hereto. This Agreement is binding upon and shall inure to the successors of each of the parties hereto. However, Customer shall not assign this Agreement without the express, written consent of DMC.
16. EXCUSABLE DELAYS Neither party shall be liable for any delay or failure in its performance under this Agreement if and to the extent which such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, earthquakes, flood, epidemics, riots and strikes. If a party becomes aware that such an event is likely to delay or prevent punctual performance of its own obligations, the party will promptly notify the other party and use its best effort to avoid or remove such causes of nonperformance and to complete the delayed job whenever such causes are removed. The provisions of this Section 15 shall not apply to any payment due by Customer for a List or Lists.
17. GOVERNING LAW This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of Maryland, which are intended to supersede any choice of laws or rules which might otherwise be applicable. Both parties consent to the jurisdiction of the courts of Maryland, whether Federal, state, or local with respect to any actions that arise out of or relate to this Agreement. The person accepting the terms and conditions of this Agreement represents and warrants that he or she has full authority to accept, and hereby does accept, the terms and conditions of the License Agreement on behalf of the individual and/or entity identified as customer.