End User License Terms

Online Directory (Electronic Versions)

STANDARD TERMS AND CONDITIONS

The following terms and conditions shall apply to Client's use of the CIS Data and Services (as such terms are defined herein).

As used herein, the term "Client" means or refers to the person or entity that has ordered the CIS Data, and will be making payment therefor.

THESE TERMS AND CONDITIONS CONTAIN AN ARBITRATION PROVISION, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. PLEASE READ CAREFULLY.

BY CLICKING THE "I AGREE TO USER AGREEMENT" CHECKBOX, THE INDIVIDUAL EXECUTING SUCH CLICK IS, ON BEHALF OF CLIENT, INDICATING (I) CLIENT HAS READ AND UNDERSTANDS, ACCEPTS AND AGREES TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT, (II) SUCH INDIVIDUAL IS AUTHORIZED TO EXECUTE THIS AGREEMENT ON BEHALF OF CLIENT, AND (III) THAT SUCH CLICK CONSTITUTES AN ELECTRONIC SIGNATURE PURSUANT TO THE FEDERAL ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, AND ANY SIMILAR STATE STATUTES.

1. Agreement. This is a license agreement ("Agreement") entered into between Cole Information Services, Inc. ("CIS") and the Client. This Agreement contains the standard terms and conditions for CIS licensing of consumer and/or business data accessed through its electronic Online Directory (hereinafter referred to as the "Services") for Reference Purposes and/or Marketing Purposes (as such terms are defined in Section 9.1 below). In order to use the Services, Client must agree to this Agreement, by clicking on the "I agree to these terms and conditions" button below. If Client does not agree to all of the terms of this Agreement, click the "I do not agree to these terms and conditions" button, in which event Client will not be able to use the Services. CIS may modify these terms and conditions from time to time upon email notification to you and such modifications shall be effective upon your receipt of such notification.
2. Term. The term of this Agreement shall begin upon the date of Client's acceptance of this Agreement as indicated by clicking the "I agree to these terms and conditions" button below and shall continue for so long as Client remains current in the payment of invoices issued by CIS for the Services (each a "Services Invoice"), unless earlier terminated in accordance herewith.
3. License. CIS hereby grants to Client a limited, non-exclusive, nontransferable license for the term of this Agreement, to use the data ("CIS Data") accessed through the Services solely for Reference Purposes and/or Marketing Purposes and in accordance with the other terms and conditions of this Agreement. This license to the CIS Data is granted to Client solely for its internal use and for the purposes expressly set forth in this Agreement. For purposes of this Agreement, any companies affiliated with Client shall be considered third parties with respect to, and will have no right to, use of, or access, the CIS Data.
4. Fees and Payment. Client will pay CIS for the Services in the amounts reflected in the Services Invoice(s). Unless otherwise provided in the Services Invoice(s), CIS shall have the right to revise or amend the pricing by providing thirty (30) days prior written notice to Client before such revision or amendment becomes effective. The Services Invoice(s) will be deemed to be correct and acceptable to Client unless Client advises CIS of disputed items within ten (10) days of their receipt. Payments shall be made to CIS within thirty (30) days of the applicable Services Invoice date. If Client fails to pay any Services Invoice in accordance with the foregoing terms, Client shall also pay interest on the unpaid amount at the lesser of one and on-half percent (1.5%) per month or the maximum amount allowed by law. The prices and rates for the Services do not include either shipping costs or applicable federal, state, local, or foreign sales or use taxes, and Client will pay or reimburse CIS for such shipping costs and taxes.
5. Confidential Treatment. Under no circumstances will Client resell or otherwise disclose to any other person, other than employees, contractors or agents whose duties reasonably relate to the lawful business purpose for which the Services were obtained, any of the Services or CIS Data that CIS delivers to Client. Client herby acknowledges that the Services and/or CIS Data provided include personal information pertaining to individual consumers, and requires that Client treat such information responsibly and take reasonable steps to maintain appropriate confidentiality and to prevent unlawful dissemination or misuse by its employees, officers, agents or any other person with access to such information. The Services and CIS Data shall only be used as expressly authorized in this Agreement.
6. Compliance with Laws. Client agrees to comply with all federal, state and local laws, rules and regulations applicable to its receipt and use of CIS Data. CIS reserves the right to revise the terms, or conditions, or pricing under this Agreement, or the Services (including without limitation the right to withdraw or restrict affected CIS Data), including the right to impose reasonable restrictions and/or requirements, to meet any requirement imposed by federal, state, or local law, rule or regulation, or to address matters concerning privacy and confidentiality, upon reasonable notice to Client, when possible under the law. Client agrees to strictly comply with such restrictions and/or requirements.
7. Data and Intellectual Property Ownership. Client acknowledges that CIS and/or its data supplier(s) have expended substantial time, effort and funds to create and deliver the Services and compile various databases. Accordingly, nothing contained in this Agreement shall be deemed to convey to Client or to any other party any ownership interest in or to intellectual property of CIS Data provided in connection with the Services.
8. Termination for Cause. If either party is in material breach of this Agreement, the non-breaching party may terminate this Agreement, provided such breach is not cured within ten (10) days following written notice of such breach. Notwithstanding the foregoing, this Agreement may be terminated by CIS immediately upon written notice to Client if in CIS' reasonable good faith judgment any Services and/or CIS Data provided to Client are being used or disclosed contrary to this Agreement. In the event that this Agreement is terminated as a result of a breach, the non-breaching party shall, in addition to its rights of termination, be entitled to pursue all other remedies against the breaching party subject to the terms of this Agreement. Termination of this Agreement shall not relieve Client of its obligation to pay for any Services performed or provided by CIS under this Agreement or any Schedule.
9. Data Restrictions. The following data restrictions apply to Client's use of the CIS Data.
   1. Use. Client is permitted to use the CIS Data for Reference Purposes and/or Marketing Purposes. “Reference Purposes” as used herein shall mean the provision of information to be used to identify locate or verify specific individuals for non-marketing purposes. "Marketing Purposes" as used herein shall mean any activity undertaken to use, collect, aggregate, analyze, maintain, update, sell, license or distribute information in order to allow or induce consumers to take action to purchase, rent, or exchange products, property or services; to solicit a charitable donation; to utilize market research or market surveys; or to provide verification services to marketers. Upon Termination of this Agreement for any reason, all previously authorized use as described herein shall cease and Client will destroy any files or fixed media containing any CIS Data and confirm same in writing to CIS.
   2. Resale Prohibition. Client agrees that it will not, (i) copy or otherwise reproduce any CIS Data except as necessary for back up or security purposes, (ii) resell, or otherwise provide or disclose to any third party, any CIS Data, in whole or in part, for any purpose whatsoever, and/or (iii) attempt, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria and/or methodology develop or used by CIS in performing the Services.
   3. Manner of Use. Client agrees that it will use the CIS Data provided under this Agreement for Reference Purposes and/or Marketing Purposes only, in accordance with applicable federal, state and local laws, industry guidelines including but not limited to Direct Marketing Association Guidelines (www.the-dma.org). Client's own privacy policies and in a manner that gives due consideration to matters concerning privacy and confidentiality. It is the Client's responsibility to determine the laws and industry guidelines applicable to its use of the CIS Data and to police such use to ensure compliance therewith. Failure to do so will be a material breach of this Agreement. Client will not in any marketing communication with any consumer utilizing CIS Data refer to any selection criteria or presumed knowledge about the recipient. Client will not cause or permit the CIS Data may not, (i) be merged or incorporated with any other non-Client third party file without the express written consent of CIS, (ii) be used to enhance a file or list owned by any third party, (iii) be used to develop any file, list, enhancement or other product, (iv) and/or prepare, publish, clean or maintain any directory. Client shall not grant access to the CIS Data to individuals incarcerated in prisons or correctional institutions. Client shall not combine any CIS Data with any personally identifiable consumer data collected online unless the subject consumer has been given adequate notice and choice with respect to such use, and Client has complied with and continues to comply with such notice.
   4. Internet Use. Client shall not use CIS Data or Services in any electronic solicitation or internet application without the prior written consent of CIS.
   5. Copy Review. Upon request, Client will provide CIS with a copy of all components of any direct marketing offer, including without limitation all mail pieces, letters, inserts and envelopes or any telephone script (“market communication pieces”) for review and approval prior to conducting any associated solicitation or survey utilizing CIS Data. Such review shall be for the purpose of ensuring consistency with the restrictions set forth in this Agreement. CIS may suspend or cancel Services where Client fails to comply with this requirement.
   6. Security. Client shall provide for the physical security of CIS Data provided for Services with the same degree of care (provided that such is a reasonable degree of care) that Client uses to protect Client's own most sensitive details.
   7. FCRA. Client understands that CIS 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 CIS 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.
   8. Do Not Call (“DNC”). Client 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 telephone solicitation calls. Due to the varying and changing nature of such laws, rules and regulations and the nature of Client’s intended use of CIS Data, CIS makes no warranty that the names or telephone numbers of such individuals have been identified on or deleted from the CIS Data and shall have no liability with respect thereto. End user is responsible for compliance with all state and/or local laws.
10. Warranty and Disclaimers. CIS warrants to Client that CIS will use commercially reasonable efforts to deliver the Services and/or CIS Data in a timely manner. Because the Services and/or CIS Data involve conveying information provided to CIS by other sources, CIS cannot and will not, for the fee charged for the Services and/or CIS Data, be an insurer or guarantor of the accuracy or reliability of the Services and/or CIS Data. THE WARRANTY IN THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY CIS HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES and/or CIS DATA. CIS MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY CIS DATA, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY CIS HEREUNDER, AND CIS HERBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENTNESS OF ANY DATA OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
11. Limitation of Liability. Client also acknowledges that the prices CIS charges for the Services and/or CIS Data are based upon CIS' expectation that the risk of any loss or injury that may be incurred by use of the Services and/or CIS Data will be borne by Client and not CIS. Client therefore agrees that it is responsible for determining that the Services and/or CIS Data are in accordance with CIS' obligations under this Agreement. If Client reasonably determines that the Services and/or CIS Data do not meet CIS' obligations under this Agreement, Client shall so notify CIS in writing within ten days after receipt of the Services and/or CIS Data in question. Client's failure to so notify CIS shall mean that Client accepts the Services and/or CIS Data as is. If Client so notifies CIS within ten days after receipt of the Services and/or CIS Data, then unless CIS reasonably disputes Client's claim, CIS shall, at its option, either reperform the Services in question or issue Client a credit for the amount Client paid to CIS for the nonconforming Services, and/or re-deliver the CIS Data. CIS' REPERFORMANCE OF THE SERVICES OR RE-DELIVERY OF THE CIS DATA, OR THE REFUND OF ANY FEES CLIENT HAS PAID FOR SUCH SERVICES OR CIS DATA, SHALL CONSTITUTE CLIENT'S SOLE REMEDY AND CIS' SOLE RESPONSIBILITY AND MAXIMUM LIABILITY UNDER THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON CIS, THEN CLIENT AGREES THAT CIS' TOTAL LIABILITY FOR ANY OR ALL OF CLIENT'S LOSSES OR INJURIES FROM CIS' ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO CIS UNDER THIS AGREEMENT FOR THE PARTICULAR SERVICES OR CIS DATA WHICH ARE THE SUBJECT OF THE ALLEGED BREACH DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED BREACH BY CIS. CLIENT COVENANTS THAT IT WILL NOT SUE CIS OR ITS SUPPLIERS FOR ANY AMOUNT GREATER THAN SUCH AMOUNT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL CIS BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS). WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF CIS IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
12. Waiver. Either party may waive compliance by the other party with any covenants or conditions contained in this Agreement, but only by written instrument signed by the party waiving such compliance. No such waiver, however shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
13. Binding Arbitration. Any dispute arising out of or relating to this Agreement or any Schedule shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in the county of the principle place of business of the Client, if CIS files for arbitration, or in the county of the principle place of business of CIS, if client files for arbitration. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees ad costs. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief, or from pursuing an action to collect unpaid amounts due under this Agreement, in a court of competent jurisdiction.
14. Audit. CIS will have the right to audit Client's and any of its agent's use of the Services and/or CIS Data to assure compliance with the terms of this Agreement. Client will be responsible for assuring full cooperation with CIS in connection with such audits and will provide CIS or obtain for CIS access to such properties, records and personnel as CIS may reasonably require for such purpose.
15. Successors and Assigns. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole or in part by Client without CIS' prior written consent.
16. Excusable Delays. Neither party shall be liable for any delay or failure in its performance under this Agreement (except for the payment of money) 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, public enemies, or terrorists, 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 delayed job whenever such causes are removed.
17. Choice of Law. This Agreement is governed by and construed in accordance with the internal substantive laws of the State of Nebraska, without regard to conflicts of law principles.
18. Notices. All notices, requests and other communications hereunder shall be in writing and shall be deemed delivered at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three (3) days after mailing by first class mail with postage prepaid. Notices to CIS and Client shall be addressed to the addresses set forth on the most recent Services Invoice (if there is more than one address for Client, notices shall be sent to the billing address), or to such other address as either party shall designate in writing to the other from time to time.
19. Complete Agreement. This Agreement, sets forth the entire understanding of Client and CIS 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. Neither party is relying on any statement, representation or warranty which is not set forth in this Agreement.
20. Amendments. This Agreement may be amended by CIS upon electronic notice to Client in accordance with the terms hereof.
21. Survival. The provisions of Sections 5-15, 17, 18, 19 and 21, in addition to any other provisions of this Agreement or any Schedule that would normally survive termination, shall survive termination of this Agreement for any reason.