General Terms and Conditions for use of Data Axle Materials
Where You have an existing and current Database Licensing Agreement with Infogroup, Inc. ("Agreement") the terms of such Agreement will apply to the use of Data Axle and the licensing of Infogroup Data.
Licensor grants the following limited license to the Licensee for the use of Infogroup Data for a 1-year period beginning when Licensee first accesses the Infogroup Data ("Term").
During the Term, Licensor grants Licensee a personal, revocable, limited, non-exclusive, non-transferable license, subject to the Terms and Conditions and the following:
- Infogroup Data must be used solely for Licensee's internal use;
- Licensor retains all ownership and intellectual property rights in the Infogroup Data and Data Axle;
- Licensee agrees to discontinue using the Infogroup Data upon expiration of the Term.
Data Use Restrictions
Any use of the Infogroup Data and Data Axle not expressly authorized in the Terms and Conditions is strictly prohibited. Without limiting the foregoing, Licensee is expressly prohibited from:
- Using the Infogroup Data, or Data Axle in connection with any service that is offered by Licensee to third parties;
- Caching or otherwise downloading or storing Licensed Data;
- Sublicensing Licensee's rights to use Infogroup Data, or Data Axle as granted to it by Licensor under the Terms and Conditions;
- Reselling or redistributing the Licensed Data, or Data Axle Platform;
- Displaying Licensed Data on public or external websites for viewing or use by party other than You;
- Disassembling, decompiling, reverse engineering, modifying or otherwise altering the Infogroup Data, or Data Axle Platform or any part thereof; or
- Using the Licensed Data, or Data Axle Platform in connection with any mobile application (for example, for iOS and Android).
- Using the Infogroup Data for direct marketing application and will not allow the Infogroup Data to be marketed to current or prospective End Users for such purposes.
Data Axle Use
Use of Data Axle must conform to the following use requirements. Any suspected failure to conform may result in immediate suspension of Licensee's access to Data Axle.
- Licensee shall not submit any false or misleading information in order to access Data Axle;
- Licensee may only develop applications designed to access Data Axle and use the Infogroup Data only as allowed by the Terms and Conditions;
- Licensee shall only access Infogroup Data through Data Axle;
- Licensee shall not falsify or alter any unique identifier or identity including the Data Axle Token, as defined below, or otherwise obscure or alter the source of searches coming from Licensee's application;
- Licensee agrees to use Data Axle in accordance with the Instructions for Use as provided on the Data Axle webpage and may be updated from time to time. These include generation of a Data Axle Token, a Licensee's unique identifier that must be requested and generated prior to any calls or searches;
- Licensee shall provide instructions on how the Licensor can access any application Licensee has developed utilizing Data Axle;
- If Licensee implements the Data Axle on a restricted website, Licensee shall provide the Licensor with appropriate credentials allowing Licensor access to such website;
- Licensee shall not reproduce, modify, distribute, decompile, disassemble, or reverse engineer any portion of Data Axle;
- Licensee shall not violate or attempt to violate the security of Data Axle (e.g., accessing a server or account you do not have authorization for; attempting to test, scan, probe, or hack the vulnerability of Data Axle or any network used by Data Axle; attempting to circumvent any authentication measures; overload, flooding, or pinging Data Axle;
- Licensee shall not transit or otherwise make available any material that contains a software virus or any other computer code, files, or programs designed to: (i) interrupt, destroy, or limit the functionality of any equipment (including software and hardware), or (ii) spy on the activities of others;
- Licensee shall not use Data Axle in a manner that, in the Licensor's sole discretion, exceeds reasonable request volumes, constitutes excessive or abusive use, or otherwise fails to comply with or is inconsistent with the Terms and Conditions;
- Licensee shall not use Data Axle in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
- Licensee shall not use Data Axle in any manner that exposes the Licensor to any harm or liability of any nature;
- Licensee shall not make any representations or warranties about Data Axle to any third party;
- Licensee shall not use Data Axle in violation of any international, federal, state, or local law, rule or regulation, whether now existing or enacted in the future, or in any manner that would cause the Licensor to violate any such laws, rules, or regulations;
- Licensee shall not use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of Infogroup Data or permit any third party to do the same;
- Licensor reserves the right to release subsequent versions of Data Axle and to require Licensee to obtain and use the most recent version. Licensor will give at least 90 notice prior to requiring the Licensee to obtain or use a new version.
- Licensee must house the Infogroup Data on the internet behind firewalls and Licensee must prevent unauthorized usage or copying of the Infogroup Data. Without limiting the foregoing, Licensee will implement a system of controls that will (a) protect the integrity of the Infogroup Data; and (b) control access to the Infogroup Data.
- Licensor may in its sole discretion update, change or delete Infogroup Data or Data Axle without notice. You acknowledge and agree that the Licensor may include "dummy information" in the Data that does not relate to any actual person or entity, for the purposes of allowing the Licensor to monitor compliance with this Agreement.
- Licensor may, in its sole discretion, use commercially reasonable efforts to provide Data Axle to Licensee twenty-four (24) hours a day, seven (7) days a week subject to normal maintenance downtimes, but it shall not be responsible for any disruption of Data Axle or Infogroup Data regardless of length. Furthermore, the Licensor shall not be liable for losses or damages you may incur due to any errors or omissions in Infogroup Data, or due to Licensee's inability to access Infogroup Data due to disruption of Data Axle. Licensee's sole remedy for breach of this section shall be to terminate the Terms and Conditions.
- Licensee acknowledges that any unauthorized use of the Infogroup Data or Data Axle by Licensee, its Representatives or independent contractors, may, at Licensor's sole discretion, be treated as a material breach of the Terms and Conditions. Licensee further acknowledges that any unauthorized use of the Infogroup Data or Data Axle may cause irreparable harm and injury to Licensor for which there is no adequate remedy at law. In addition to all other remedies available under the Terms and Conditions, at law or in equity, Licensee further agrees that Licensor will be entitled to seek injunctive relief in the event Licensee, its Representatives or independent contractors, use the Infogroup Data or Data Axle in violation of any term or condition of this Agreement.
- Licensee acknowledges that Licensee's use of the Infogroup Data, or Data Axle is expressly conditioned on Licensee's, and its Representatives' and independent contractors', compliance with: (i) all Laws; (ii) the Direct Marketing Association's Guidelines for Ethical Business Practice; and (iii) the Terms and Conditions.
- Licensor has a process to randomly monitor the use of the Infogroup Data through seeding or other means to ensure that Licensee uses the Infogroup Data in accordance with its intended purpose. Licensee acknowledges and agrees that the Licensor may include fake information in the Infogroup Data that does not relate to any actual person or entity, for the purposes of allowing the Licensor to monitor compliance with the Terms and Conditions.
- Licensee acknowledges that the Infogroup Data has not undergone any specific data processing services, including but not limited to, Do-Not-Call or wireless number suppression and that Licensee is solely responsible for obtaining any necessary processing or must utilize Infogroup Data only in a manner permitted by Law.
- Licensor does not guarantee that the Infogroup Data meets any applicable legal requirements related to the use of marketing information, including but not limited to, laws applicable to commercial email or other electronic messages, telemarketing laws and wireless suppression or wireless domain lists. Law or Laws means all laws, statutes, rules, regulations, and ordinances applicable to a Party's obligations under this Agreement including, without limitation, those concerning privacy, data protection, telemarketing, fax marketing, email marketing, and direct marketing (including but not limited to, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM"), the Canadian Anti-Spam Law ("CASL"), the Telephone Consumer Protection Act of 1991 ("TCPA"), and the Children's Online Privacy Protection Act ("COPPA")).
- Licensee represents that your performance of the Terms and Conditions does not and will not conflict with or result in the breach of or violation of any other agreement, instrument, order, judgment or decree to which it is a party or by which it is bound.
- THE INFOGROUP DATA and DATA AXLE ARE PROVIDED ON AN "AS IS" BASIS AND LICENSOR HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES TO LICENSEE OR TO ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPLIANCE WITH LAWS OR OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF THE LICENSED DATA, WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, NEITHER INFOGROUP NOR ANY OF ITS THIRD-PARTY SUPPLIERS OR SERVICE PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPREHENSIVENESS OR COMPLETENESS OF THE INFOGROUP DATA.
- IN NO EVENT WILL LICENSOR OR ANY OF ITS AFFILIATES BE LIABLE TO LICENSEE OR ANY THIRD PARTY, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR "COSTS OF COVER" (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING OUT OF ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE.
- THE MAXIMUM AGGREGATE LIABILITY OF LICENSOR TO LICENSEE OR ANY THIRD PARTY, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
- Licensee agrees to indemnify, defend, and hold harmless Licensor and its Representatives from and against any and all Third Party Claims to the extent Third Party Claims arise out of or relate to the following: (i) the gross negligence or willful misconduct of Licensee or its Representatives in the performance of Licensee's obligations under the Terms and Conditions; or (ii) Licensee's, its Representative's or independent contractor's use of the Infogroup Data or Data Axle in violation of the terms of this Agreement or Laws.
Fees and Payment
Licensee agrees to the payment schedules as provided on Data Axle Payment Schedule incorporated here by reference. Such schedules may change from time to time without notice and will be effective immediately upon posting.
The Terms and Conditions shall terminate upon the expiration of the Term unless otherwise terminated in accordance with the Terms and Conditions. Licensor may terminate the Terms and Conditions immediately if Licensee breaches any of the Terms and Conditions. Licensee's access to Data Axle and the Licensed Data may be terminated at the convenience of the Licensor.
Effect of Termination
Upon termination or expiration of the Terms and Conditions for any reason, Licensee must: (a) ensure that all copies of the Infogroup Data and any related data and information is deleted from Licensee's computers and the computers of any Representative or independent contractor who processed the Infogroup Data; (b) cease any and all use of the Infogroup Data; (c) return all copies, whether in print, tape or other media, of all or any part of the Infogroup Data to Licensor no later than five (5) days after termination or expiration of the Terms and Conditions; (d) certify in writing (using the form attached hereto as Exhibit D and incorporated herein) within ten (10) days after termination of this Agreement that Licensee and its service providers have deleted or returned to Licensor all copies of Infogroup Data; and (e) pay to Licensor any amounts due to Licensor as of the effective date of termination. Licensee's access to Data Axle will be immediately terminated upon the expiration or termination of the Terms and Conditions.
LICENSED DATA AUDIT
Licensee acknowledges and agrees that Licensor may, during the Term and for a period of two (2) years following the termination of the Terms and Conditions, audit Licensee for the sole purpose of examining and verifying that Licensee has complied with the Terms and Conditions regarding the permitted use of Infogroup Data, Data Axle and Licensee's obligations upon termination of the Agreement. Designated representatives of Licensee and Licensor, or Licensor's authorized agent, will work together in a timely manner to inspect Licensee's books and records and any systems that load, store, process, and/or read Infogroup Data or Data Axle as reasonably necessary for Licensor to verify that Licensee has complied with the Terms and Conditions. Licensor will be solely responsible for its costs and expenses of such audit; provided, however, Licensee will pay the reasonable costs and expenses of such audit and any applicable charges if the audit reveals that Licensee has not complied with this Agreement.
Licensor is and will remain the sole and exclusive owner of all right, title, and interest in and to the Infogroup Data and Data Axle Platform and all Intellectual Property Rights therein, and to any modifications, updates, improvements, upgrades, derivative works, and Feedback related thereto. If Licensee provides suggestions, comments, ideas or recommendations, requests for enhancements, additional features or functionality, or other feedback to Licensor, (collectively "Feedback") Licensor shall own all right, title, and interest in and to the Feedback and all Intellectual Property Rights therein. Licensee hereby assigns all right, title and interest in and to the Feedback, and all Intellectual Property Rights therein, to Licensor. Except for the assignment in the preceding sentence and the limited license rights expressly granted in the Terms and Conditions, nothing in the Terms and Conditions shall be deemed to grant to one Party license rights, ownership rights or any other Intellectual Property Rights in any materials owned by the other Party or any affiliate of the other Party.
- Assignment. Licensee's rights and/or obligations under the Terms and Conditions may not be assigned, transferred, delegated, or sold. Any attempted assignment in violation of this paragraph will be deemed null and void. Licensor may assign its rights and obligations under the Terms and Conditions in its entirety in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of its assets related to the Terms and Conditions. The Terms and Conditions will be binding upon and will inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permitted assignees.
- Modification. Licensor may modify the Terms and Conditions in its sole discretion and such updates and modifications will be effective immediately upon posting to the Terms and Conditions section of the Data Axle website. No other modifications of the Terms and Conditions shall be binding unless in writing and signed by the Licensor and the Licensee.
- REMEDIES; WAIVERS. All remedies hereunder are cumulative and the exercise by any Party of any rights hereunder will not preclude such Party from pursuing any additional remedies available to it under the Terms and Conditions or any other legal or equitable rights afforded such Party. The failure of either Party to require the performance of any term or condition of the Terms and Conditions will not prevent any subsequent enforcement of this term or condition, nor will it be deemed a waiver of any subsequent breach.
- GOVERNING LAW; CONSENT TO JURISDICTION; NO RIGHT TO JURY TRIAL. The Terms and Conditions will be governed by and construed in accordance with the internal laws of the State of Nebraska, without regard to the conflicts of law principles of that State or any other state. The Parties hereby irrevocably submit to the exclusive jurisdiction of any United States federal or Nebraska state court located in Omaha, Nebraska with respect to any matter arising out of or relating to the Terms and Conditions, and they hereby irrevocably agree that all claims in respect thereto will be heard and determined in any such court and irrevocably waive any objection they may now or hereafter have as to the venue for any proceeding relating to the Terms and Conditions or that such court is an inconvenient forum. The Parties to the Terms and Conditions, and any of their affiliates, assignees or successors waive the right to a trial by jury on any claim relating to or arising out of the Terms and Conditions.
- RELATIONSHIP OF PARTIES. The Terms and Conditions do not create a joint venture or partnership between Licensor and the Licensee, and each will act independently of the other. Neither Party is empowered to bind or commit the other to any contract or other obligation. The Parties also agree that there are no third-party beneficiaries to the Terms and Conditions.
- TAXES. The royalties and/or fees pursuant to Fee Schedule section of the Terms and Conditions are exclusive of any taxes. Licensee will be responsible to pay all taxes of any type, nature or description (including, but not limited to, sale, use, gross receipts, excise, import, export, income and employment taxes); provided, however, Licensee will not be responsible for any income taxes imposed upon Licensor by any taxing jurisdiction, arising by virtue of the performance of the Terms and Conditions.
- SEVERABILITY. A decision by any court of competent jurisdiction invalidating or holding unenforceable any part of the Terms and Conditions will not affect the validity and enforceability of any other part of the Terms and Conditions.
- SURVIVING PROVISIONS. The following provisions will survive the termination or expiration of the Terms and Conditions for any reason and will remain in effect after any such termination or expiration: Sections 5, 8, 9, 10, 11, 12, 13, 15, 17, 18, 21, 22, 23, and 24 as well as any other provisions which, by their nature, are intended to survive termination or expiration of the Terms and Conditions.
- ENTIRE AGREEMENT. The Terms and Conditions together with the Data Axle Payment Schedule and ANY OTHER LINKS constitutes the entire Terms and Conditions between the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. No printed or on-line terms and conditions incorporated into Licensee's purchase orders or invoices, other than as specified or permitted by the Terms and Conditions will be enforceable against Licensor and will be deemed null and void.