Title. End User acknowledges that the Data shall at all times remain the intellectual property of Company’s licensors and third party data owners (collectively the “Data Owner”) who provided the Data to Company, and that End User has no proprietary rights whatsoever in the Data.
Refunds and Cancellations. The Company will incur substantial costs in obtaining the ordered Product to the End User, therefore as a primary condition of this agreement, the End User agrees that All sales are final. No refunds are permitted. Orders cancelled before fulfillment will be charged a 10% cancellation fee. Your order and every future order has been fulfilled with data owned by MediaStratX or a third party supplier. Specific attributes are captured online, from surveys or modeled by MediaStratX or by one of our suppliers.
MediaStratX’s maximum liability for errors or omissions cannot exceed the cost of the data and services purchased from MediaStratX. You may be required to supply MediaStratX with a copy of a sample mail piece, telephone script or html prior to the supply of data by MediaStratX. MediaStratX reserves the right to refuse an order for any reason.
End User Warranty. End User warrants that (a) it is a duly formed entity (i.e., corporation or limited liability Company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all states where the ownership of its properties or nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform the Agreement; and (d) the execution and delivery of the Agreement have been duly authorized.
Permitted Uses / Restrictions: End User may use the Data provided pursuant to this Agreement, subject to the following:
- The Data may be used for End User’s marketing programs to consumers and businesses, including house file enhancements, mailing list screens, modeling and list analysis.
- End User may not sell, lease, rent or except as otherwise set forth in this Agreement, provide to any other party (i) the Data or a derivative of the Data, (ii) its own file, as enhanced with the Data, or (iii) any direct marketing list, model, analysis, code or report utilizing or derived from the Data.
- The Data may only be used: (i) to determine the likelihood that an individual would be interested in or respond to a solicitation from End User; and (ii) for affirmative marketing uses and not for exclusionary or discriminatory purposes. End User may not use the Data as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance or employment or credit repair services. The Data will not be used to advertise, sell, or exchange any illegal or illicit products or services, including, without limitation, pornography, illegal drugs, or illegal weapons. The Data may not be used in an individual look-up reference application.
- All marketing communications used in connection with any list created by or for End User derived from the Data shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient’s name and address; (ii) comply with all applicable federal and state laws, rules and regulations; and (iii) comply with all applicable privacy policies, ethical use and Fair Information Practices published by the Direct Marketing Association (“DMA”).
- End User agrees to furnish Company, if requested, two (2) copies of each mail piece and/or telemarketing script using information derived from the Data.
- End User may not use the Data, in whole or in part, in the development of (i) any application that is outside the scope of this Agreement or (ii) any data products or services to be provided to third parties including, without limitation, any list enhancement or data appending service or product.
- Company reserves the right to review and pre-approve the End User’s intended use of the Data prior to Company’s acceptance of an order.
- Company is obligated to comply with certain restrictions and requirements placed upon the use of the Data by the Data Owners. End User shall strictly comply with all restrictions and requirements now or hereafter imposed upon Company by any Data Owner and made known to End User in writing.
- End User represents and warrants that, it has implemented and maintains an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any End User information at issue sufficient to protect the confidentiality of the Data.
- End User clients may not use any latitude/longitude Data elements to create (or assist in the creation of) a digital map database. A “digital map database” means a database of geospatial data containing the following information and attributes: (x) road geometry and street names; or (y) routing attributes that enable turn-by-turn navigation on such road geometry; or (z) latitude and longitude of individual addresses and house number ranges.
- End User will not in any direct mail solicitation, telephone solicitation, or survey refer to any selection criteria or any presumed knowledge about the recipient.
- MediaStratX provides business data for lawful purposes only and expressly forbids the use of its business data in any unlawful manner. For Cell Phone Data Only: It is unlawful to use cell phone numbers for auto-dialed and/or pre-recorded calls or texts without prior express written consent from the recipient.
Consumer Inquiries. End User shall be responsible for accepting and responding to any communication initiated by a consumer (“Consumer Inquiries”) arising out of End User’s use of the Data. End User agrees that it will provide “in house” suppression to consumers, upon request by a consumer, from future marketing initiatives by End User and agrees to honor any such request by suppressing such consumer information from End User’s marketing solicitations. No reference to Company or the Data Owners in written or oral communication to a consumer or in scripts used by End User in responding to Consumer Inquiries shall be made without Company’s and the Data Owner’s prior written approval.
Audit/Non-Compliance. End User agrees that at all times during the Term of this Agreement, it shall maintain current, accurate and complete books and records relating to its usage of the Data in compliance with the terms of this Agreement. End User agrees that Company, or any designee of Company, shall have the right at any time to examine, inspect, audit, review and copy or make extracts from all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to End User at least five (5) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be strictly limited to those books and records which specifically relate to information pertinent to the use of the Data. 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).
Indemnification. End User shall defend, indemnify, and hold harmless Company and the Data Owner 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 End User’s misuse or unauthorized use of the Data. Company shall give End User 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 End User’s obligations under this Section.
Warranty Disclaimer/Limitation of Liability. The Data may be subject to transcription and transmission errors, accordingly, the Data is provided on an “as is,” “as available” basis. Any use or reliance upon the Data by End User shall be at its own risk. EXCEPT AS SET FORTH IN THIS SECTION, NEITHER Company NOR THE DATA OWNER MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER WITH RESPECT TO THE SERVICES, DATA, OR THE MEDIA ON WHICH THE DATA IS PROVIDED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Company’S AND THE DATA OWNER’S AGGREGATE LIABILITY TO END USER, WHETHER FOR NEGLIGENCE, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE PRICE PAID FOR THE DATA OR SERVICES TO WHICH THE INCIDENT RELATES. IN NO EVENT SHALL Company OR DATA OWNER 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.
Events Upon Termination. Upon the termination of the Agreement for any reason, End User shall, at Company’s option, destroy or return to Company the Data and any copies thereof and certify in a writing to be delivered to Company within five (5) business days following such destruction or return that End User has fully complied with the requirements of this Section.
Publicity. All media releases by either party or its agents relating to this Agreement shall be subject to the prior written approval of both parties.
Confidentiality. The parties agree that the terms and conditions of this Agreement, and any policies, business practices, plans and methods not in the public domain which may be known or disclosed by End User to the other as a result of this Agreement will be held in confidence and not disclosed to any third party for any reason unless required by law.
Applicable Law. The Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to conflicts of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns.
CAN-Spam Compliance. MediaStratX strives to uphold The Email Sender & Provider Coalition guidelines:
- Commercial email must not be sent to a recipient’s email address without prior consent. Email addresses cannot be obtained by means of web scraping or other automated harvesting means that do not include any consent or permission from the email address so obtained.
- Every commercial message must include a clear method by which the recipient can unsubscribe.
- Honor opt-out requests promptly.
- All messages sent for marketing or commercial purposes must include the sender’s physical address as well as a verified “from” address.
MediaStratX makes every effort to ensure that our lists and deployment practices are 100% compliant with Anti-Spam legislation. Email works best as part of a portfolio of marketing tactics applied to target audiences over time to meet business objectives. Do not expect to be profitable deploying email for standalone direct marketing offers or surveys, not supported by other marketing efforts. Unsupported, well targeted email typically works well only for branding, awareness or lead generation campaigns.
DNC COMPLIANCE The End User has requested to receive from the Company certain data which may include the names and telephone numbers of consumers who have registered on a State or the National Do Not Call Registry. In as much as Company is not the party making the telephone calls, Company has no obligation to scrub the data against the Do Not Call Registries. Company assumes no liability for any phone numbers it provides as to the accuracy of the pre-scrub.
- End User assumes all responsibility for all data received from Company, or any related subsidiary, for use in strict compliance with all applicable federal, state, and local laws, rules and regulations regarding privacy, telemarketing and direct marketing. In providing data, Company does not determine whether End User has an exemption from any applicable federal, state or local law, rule or regulation. Such determination is the sole responsibility of the End User.
- End User represents and warrants that the content of any and all communications with the public used in conjunction with the data supplied by Company shall be in full and complete compliance with all applicable federal and state laws, rules and regulations.
- End User warrants that it has ready and explicitly agrees to be bound by the terms and conditions printed on the back of the invoice. If there is any conflict with the terms and conditions herein and the purchase order or correspondence from the End User, the terms and conditions herein shall govern.
- End User irrevocably covenants, promises and agrees to indemnify Company and to hold Company harmless from and against any and all losses, claims, expenses, suits, damages, costs, demand or liabilities, joint or several, of whatever kind or nature which Company may sustain or to which Company may become subject arising out of or relating in any way to the data received from Company or any related subsidiary including, without limitation, in each case attorney’s fees, costs and expenses actually incurred in defending against or enforcing any such losses, claims, expenses, suits, damages or liabilities.