Any use of the Data constitutes your acceptance of and agreement to the terms and conditions set forth below (the ?Agreement?).
1. Restricted License / Use of Data. You (the ?Licensee?) must agree to the terms and conditions contained herein in order to use any data provided by The DmDataSource, LLC (?DmDataSource?), and any use by you of the Data provided by DmDataSource constitutes your acceptance of and agreement to the terms and conditions of this Agreement. Subject to the terms of this agreement, DmDataSource grants you a non-exclusive, non-transferable license to use certain names, addresses, telephone numbers and / or automobile ownership and / or other information provided to you by DmDataSource (the ?Data?), to be used only for lawful purposes. Licensee agrees that it shall use the Data only for its own internal and lawful direct marketing purposes. Unless otherwise indicated, for purposes of this Agreement, any companies affiliated with Licensee shall be considered third parties with respect to the use of, or access to, the Data. Such use and / or access shall be prohibited.,
2. Data Restrictions / Compliance with Law. Licensee agrees to comply with all privacy and data protection laws, rules and regulations (as well as any other laws, rules or regulations) which are, or which may in the future be, applicable in any way to the Data. Further, Licensee agrees to the following restrictions regarding use of the Data:
2.1 Licensee agrees to comply with all federal, state, and/or local laws, rules and regulations which are applicable to the Data. Additionally, Licensee accepts full responsibility for the legal and proper use of any Data, including Private Telephone Numbers by Licensee and any third-party Licensee customers, processors, agents, or other entity that may be involved with or associated with the use of such Data. This includes recent compliance changes effective October 16, 2013 for the Telephone Consumer Protection Act (TCPA) and impacting consumer privacy.
2.2 Licensee agrees that (i) the Data is not being collected for credit purposes and that the Data is not intended to be indicative of any consumer?s creditworthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act (?FCRA?), 15 USC ? 1681a; (ii) DmDataSource is not a Credit Reporting Agency; (iii) DmDataSource did not compile any Data from a Credit Reporting Agency database; and (iv) DmDataSource did not use any non-public personal information as defined in GLBA or state law in compiling such Data.
2.3 Licensee shall not use any Data as a factor in determining a consumer?s credit qualifications for (a) credit or insurance used primarily for personal, family or household purposes; (b) employment purposes; or (c) other purposes set forth in Section 604 of the FCRA, 15 USC ? 1681b or any similar statute.
2.4 All Data provided under this Agreement is only available for Licensee?s one-time use. Notwithstanding the foregoing, Licensee shall be required to pay DmDataSource for each time they use the Data.
2.5 DmDataSource?s systems may not be used or accessed for the purpose of retrieving or accessing Data if the telephone number used for retrieval has been computer or otherwise generated and is not generated, identified, or obtained as the result of commercial, transactional activity. For clarification, transactions activity includes, without limitation, Licensee?s identification of an inbound telephone call.
2.6 Licensee shall not provide the Data, in whole or in part, nor shall it provide any subset of the Data, to any third party as a stand-alone product, file or database.
2.7 Under no circumstances shall the Data be used (a) as a source for the modeling of, or determination of, consumer credit worthiness, consumer credit approval, a consumer?s eligibility for employment or insurance; nor (b) to advertise, sell, or exchange any products or services that involve sexual paraphernalia; drug paraphernalia; adult films; adult recordings or adult magazines; weapons; credit repair services or other illegal or illicit activities.
2.8 Licensee shall not use the Data as part of an application that provides name or phone number lookups to companies providing live-operator directory assistance services.
2.9 Licensee shall provide written notice to its employees, representatives and/or agents who have or may have access to any Data detailing the restrictions and obligations contained in this Agreement. Licensee shall further utilize reasonable and sufficient security measures, which shall be no less than the measures Licensee utilizes to secure its own proprietary information, to prevent any unauthorized use or disclosure of the Data.
2.10 Licensee shall not reverse engineer, decompile, decode, or otherwise deconstruct the Data or act or fail to act in such a manner as to explicitly or implicitly allow such deconstruction actions.
2.11 Licensee shall not make or cause to make any copies of the Data for any reason.
3. Resale Prohibition. Licensee is prohibited from reselling, sublicensing, or otherwise providing the Data to any third-party.
4. Confidentiality. The terms of this Agreement shall be confidential. In the event that Licensee must disclose this Agreement to a court or other governmental entity, Licensee shall provide advanced written notice to DmDataSource and shall reasonably cooperate in ensuring that such disclosure is subject to a suitable protective order.
5. Title / Ownership. Licensee acknowledges that the Data provided shall at all times remain the property of DmDataSource or the source who provided the Data to DmDataSource (a ?Data Source?), and that Licensee has no rights whatsoever in the Data except as expressly set forth in this Agreement.
6. Payment. Licensee shall pay DmDataSource all monies due, as are invoiced to Licensee by DmDataSource. Without limiting any of DmDataSource?s remedies for non-payment or late payment on invoice(s), it is agreed that an invoice not paid within thirty (30) days of the date the invoice was mailed or emailed will be subject to a late charge of one and one-half percent (1.5%) per month (18% per year) or the maximum allowed by law, whichever is less. Further, if collection efforts are pursued, Licensee agrees to pay all costs of collection, including reasonable attorneys? fees.
7. Warranties. DmDataSource warrants that the Data provided to Licensee under this Agreement will, upon delivery, be as current, accurate and complete as may be reasonably achieved using the source data, compilation and data processing methods consistent with applicable industry standards. Notwithstanding the foregoing, DmDataSource does not warrant the Data as being error free, given that DmDataSource and / or a Data Source does not independently verify the completeness, accuracy or authenticity of the Data and that the Data reported to and by DmDataSource and / or a Data Source may be subject to transcription and transmission errors. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 7, DmDataSource MAKES AND LICENSEE RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
8. Indemnification. Licensee agrees to indemnify, defend, and hold DmDataSource, its employees, agents and / or officers harmless against any cost, loss, liability or expense (including reasonable attorneys? fees) arising out of third party claims incurred as a result of any claim relating to Licensee?s (a) use of the Data not in compliance with the Agreement, and/or (b) failure to materially comply with any federal, state or local law, rule or regulation applicable to the Data, INCLUDING WITHOUT LIMITATION, those related to privacy and data protection. As a condition of such defense and indemnification, DmDataSource will provide Licensee with prompt written notice of any such claim and permit Licensee to control the defense, settlement, adjustment or compromise of any such claim. DmDataSource shall have no authority to settle any claim on behalf of Licensee. DmDataSource may, at its election, be represented by counsel of its choice and be present at all associated proceedings. Licensee further agrees to indemnify and hold DmDataSource, its employees, agents and / or officers harmless from any and all claims, losses and damages, liability, and costs, including attorney?s fees, against, or incurred by, DmDataSource, its employees, agents and / or officers to the extent such claims, damages, liability and costs result directly or indirectly from (a) any use of Data provided to Licensee under this Agreement that is not in compliance with this Agreement; (b) Licensee ?s negligence or intentional misconduct; and / or (c) Licensee?s breach of its obligations under this Agreement including, but not limited to, any breach which results in the unauthorized and / or non-lawful use of the Data.
9. Limitation of Remedies/ Limitation of Liability. DmDataSource?s sole obligation and Licensee?s exclusive remedy for any claim of defective Data shall be to correct the Data in question without charge within thirty (30) days of receiving notice from Licensee of such defective Data or, at Licensee?s option, to refund the price, prorated for the percentage of defective Data, paid by Licensee for such Data. Licensee must provide written notice to DmDataSource of such claim, describing any errors in sufficient detail with any necessary backup information or documents. Licensee acknowledges that some corrections of errors in the Data shall be dependent on the availability of the corrections from the source of the applicable Data. Further, IN NO EVENT SHALL DmDataSource (INCLUDING ANY OF ITS DATA SOURCES) OR THE LICENSEE 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. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID BY LICENSEE UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY IN THE EVENT WHERE EITHER PARTY?S CONDUCT RESULTING IN THE LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO CONSTITUTE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE ASSERTED WITHIN TWO YEARS OF THE DATE UPON WHICH SUCH CAUSE OF ACTION ACCRUED.
10. Termination. Intial term is for 12 months after which either party may terminate this Agreement upon at least thirty (30) days prior written notice to the other party. However, if Licensee fails to comply with any term or condition stated herein, then the license provided by this Agreement shall automatically terminate. Upon the termination or expiration of this Agreement: (i) DmDataSource shall cease to provide Licensee with any further Data or updates to the Data; (ii) Licensee shall not retain any portion of the Data and shall discontinue all use of the Data and, within thirty (30) days, erase, purge, destroy and/or return to DmDataSource any and all Data, or copies thereof, in its possession (in electronic or written form) and provide DmDataSource with a written certification that all Data has been returned to DmDataSource or has been otherwise erased, purged or destroyed; and (iii) Licensee shall pay to DmDataSource all fees and charges due and owing to DmDataSource at the time of termination or expiration.
11. Right to Inspect / Audit. Licensee shall, for a period of two (2) years, maintain current and complete books and records regarding the Data which accurately reflect Licensee usage, storage and handling of the Data (?Records?). Upon reasonable, advance, written notice from DmDataSource to Licensee, and no more than twice annually during any calendar year, Licensee shall permit representatives of DmDataSource to inspect and audit Licensee?s Records during normal business hours. Licensee agrees that at all times it shall maintain current, accurate and complete Records relating to: a) Licensee?s usage and handling of the Data; and b) any payments due DmDataSource. DmDataSource shall further have the right to commence and conduct one inspection and audit of the Records at any time during the twelve (12) month period immediately following the termination or expiration of this Agreement. Any and all such inspections or audits by DmDataSource shall be strictly limited to those Records that specifically relate to the information pertinent to the use or handling of the Data.
12. Assignment. This Agreement shall not be assigned, subleased, or sublicensed without the prior written consent of DmDataSource.
13. Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of its obligations under this Agreement from events or conditions beyond its control. The term ?force majeure? shall mean an act of God, strike or other industrial disturbance, act of terror, war, blockade, public riot, plague, lightning, fire, storm, flood, earthquake, explosion, governmental action, unavailability of equipment or supplies, and any other like cause.
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree that any action brought in any court regarding this Agreement shall only be brought and maintained in either state court or federal court located in Orange County, Florida. The parties further agree that each hereby waives its right to challenge or object to the jurisdiction or venue of said courts.
15. Miscellaneous. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of the Agreement. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. The headings used in this Agreement are for reference purposes only and shall not be deemed a substantive part of this Agreement.