Terms and Conditions Governing Purchase Orders Submitted to Infocore, Inc.

CLIENT AND INFOCORE INC. (HEREINAFTER, “SERVICE PROVIDER”) AGREE AND ACKNOWLEDGE ANY PURCHASE ORDER FOR SERVICES (DEFINED BELOW) IS SUBJECT TO, AND INCORPORATES BY REFERENCE, THE FOLLOWING TERMS & CONDITIONS.

  • 1. Definitions.
    • 1.1.Personal Data” means any information: (a) relating to a natural person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity; and (b) that is subject to the provisions of the EU-U.S. Privacy Shield Framework.
    • 1.2.Client Data” means any customer or prospect data that Client or Client’s designee (including an End User) supplies or makes available to Service Provider in order to facilitate the location of requested Data from one or more Data Owners to perform the Services pursuant to an applicable Purchase Order.
    • 1.3.Data” means the information contained in one or more proprietary computerized databases or lists maintained in different media composed of demographic information, names and addresses of individuals and/or businesses and other related information, the data elements of which are more particularly described in Purchase Orders to be completed by the parties.
    • 1.4.Data Owner” means any person who has the rights under all Legal Requirements to license, rent, sell transfer or convey Data.
    • 1.5.End User” means the person using the Data, whether such person is Client or a person for whom Client is acting as an agent. Client warrants that End User shall use the results of the Services for End User’s own business purposes and not for the purpose of rendering or reselling information services to third parties.
    • 1.6.Legal Requirements” means all applicable international, federal, state and local laws, regulations, rules and judicial and administrative decisions, including any applicable privacy and data protection laws.
    • 1.7.List” means Data that the specified Data Owner compiles based upon Client-designated selection criteria.
    • 1.8.Purchase Order” means a written order for Services submitted by Client to Service Provider.
    • 1.9.Services” include Service Provider’s facilitation of one or more of the following Data uses and miscellaneous other services requested by Client:
      • Appending Data to Client Data.
      • Processing Client Data to incorporate certain Data or delete certain Client Data records from a Client file and may include, without limitation, data hygiene, address capture and postal and national change of address services.
      • Providing access to one or more Lists for a “one-time” use, which includes arranging for direct deployment by a Data Owner.
      • Providing access to Data for use on other than a “one-time” basis.
      • Use of Data not listed above as may be arranged on mutually acceptable terms to Client and Data Owner.
  • 2. Purchase Orders.
    • 2.1. Purchase Orders and Performance of Services. Service Provider will not be obligated to initiate any Services until it notifies Client that it accepts a Purchase Order from Client, and receives any materials, including Client Data, which Client is to provide in the form specified in the applicable Purchase Order. Service Provider shall f its acceptance
    • 2.2. Change Orders. If Client changes, postpones or cancels Services described in a Purchase Order, Client will pay a charge as may be reasonably determined by Service Provider.
  • 3. Permitted Uses / Restrictions: End User may use the Data provided pursuant to these Terms & Conditions, subject to the following:
    • 3.1. Data is rented for one time use only unless specifically approved otherwise in writing on the Purchase Order. Once an individual responds to a solicitation, however, this limitation no longer applies to that individual record.
    • 3.2. The Data may be used for End User’s marketing applications to consumers and businesses. Marketing applications include the use of the Data by the customer for such customer’s direct marketing, telemarketing and targeted advertising campaigns served to consumers and businesses by mail or via the internet (including e-mail communications, banner ads and other digital advertising applications), cable or satellite television, as well as cellular and wireless devices.
    • 3.3. End User may not sell, lease, rent or otherwise provide the Data to any third party.
    • 3.4. 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.
    • 3.5. 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; (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.
    • 3.6. Except as set forth in the Purchase Order, the Data will not be used: (i) for the benefit of a third party; (ii) in the development of any products or services to be provided to a third party; (iii) in the conduct of any marketing campaigns promoting a third party’s products or services; or (iv) in connection with any list enhancement or data appending projects performed for a third party.
    • 3.7. 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 customer information at issue.
    • 3.8. End User represents and warrants it is aware that its use, processing or exporting Personal Data in or from the United States subjects it to obligations under the EU-U.S. Privacy Shield Framework, whether or not it joins and becomes a participant through the United States Commerce Department. End User represents and warrants it shall not violate or breach its obligations under the EU-U.S. Privacy Shield Framework. Visit https://www.privacyshield.gov for more information.
  • 4. Payments to Service Provider.
    • 4.1. Payment Terms. Client shall pay Service Provider the amounts and at such times as the Parties agree. If Service Provider issues an invoice for payments, Service Provider’s invoices will be deemed to be correct and acceptable to Client unless Client advises Service Provider of disputed items in the invoice within five (5) days of receipt of an invoice. Invoices are deemed to be payable upon receipt by Client unless otherwise set forth in the invoice. If Client fails to pay any invoice (or any undisputed portion of an invoice), Client shall also pay interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law, commencing on the date of the invoice. Subject to resolution of good faith disputes concerning invoiced amounts, Client’s obligation to pay the invoiced amounts is absolute and unconditional and not subject to Client’s receipt of payment from its customer or End User or to any offset, defense or counterclaim.
    • 4.2. Taxes. The prices and rates for the Services do not include applicable value added, sales, use or similar taxes, and Client will pay or reimburse Service Provider for such taxes. Service Provider will show the amount of all such charges separately on its invoices to Client.
  • 5. Warranties
    • 5.1. Service Provider Limited Warranties. Service Provider warrants that it will use its best efforts to insure the compilation of the Data by Data Owners and its transmittal to Client and the subsequent use thereof by Client and its End Users does not violate any applicable Legal Requirements.
    • 5.2. Client Warranties. If Client Data is provided by Client to Service Provider or Data Owners, Client warrants such Client Data satisfies all Legal Requirements and that Client has the right to make such Client Data available to Service Provider and Data Owners and it is not aware of any allegations of infringement or notices of misappropriation issued by any person or any claims that the Client Data infringes or will infringe any rights, including any intellectual property rights, of any third party. Client warrants and represents that Client is fully authorized by End User to act on behalf and as its agent, and that Client has provided the End User with a written copy of or a link to these Purchase Order Terms & Conditions and has informed the End User that its use of any Data is subject to these Terms & Conditions.
    • 5.3. Disclaimers. THE WARRANTIES MADE BY SERVICE PROVIDER ARE THE EXCLUSIVE WARRANTIES IT MAKES WITH RESPECT TO THE SERVICES OR THE DATA. SERVICE PROVIDER MAKES NO OTHER REPRESENTATION OR WARRANTIES, AND HEREBY DISCLAIMS, TO THE GREATEST EXENT PERMISSIBLE UNDER APPLICABLE LAW, ALL OTHER WARRANITES EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFIRNGEMENT, WITH RESPECT TO THE SERVICES AND DATA SUPPLIED BY SERVICE PROVIDER, ANY WORK ORDER OR ANY CHANGE ORDER. SERVICE PROVIDER DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS OR RELIABILITY OF DATA OR RESULTING DIRECT MAIL OR EMAIL LISTS, OR THAT THE SERVICE PROVIDER SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACCEPTS AND AGREES THAT NEITHER SERVICE PROVIDER NOR DATA OWNERS WARRANT THE RESULTS OF ANY DECISIONS TAKEN BY THE CLIENT OR END USER AS A RESULT OF USE OF THE DATA TO ANY EXTENT WHATEVER AND THAT SERVICE PROVIDER WILL NOT BE LIABLE FOR ANY LOSS, CLAIMS OR DAMAGE THAT MAY ARISE FROM ANY SUCH DECISIONS.
  • 6. Limitation of Liability and Indemnification
    • 6.1. Limitation of Liability. SERVICE PROVIDER’S CUMULATIVE LIABILITY UNDER ANY PURCHASE ORDER FROM CLIENT SHALL NOT EXCEED THE AMOUNT EARNED BY SERVICE PROVIDER AS A COMMISSION FOR THE SPECIFIC SERVICES GIVING RISE TO SUCH LIABILITY. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, STATUTORY, SPECIAL OR PUNATIVE DAMAGES, OR FOR ANY LOST, PROFIT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF REPUTATION OR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF SERVICE PROVIDER HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
    • 6.2. Indemnification of Service Provider. Client will indemnify, defend, and hold Service Provider harmless from and against any and all liabilities, damages, losses, claims, costs and expenses (including attorneys’ fees) (collectively, “Loss”) arising out of or resulting from (i) Client’s or any End User’s use of the Data in violation of the permitted uses, (ii) any claim made by End Users against Service Provider or Data Owners; (iii) Client’s or End User’s violation of any applicable Legal Requirements, any applicable privacy policy or any other privacy or confidentiality rights of any third party; or (iv) any misrepresentation or breach of any representation or warranty by Client.
  • 7. Proprietary Rights; Security
    • 7.1. Confidentiality. Each Party hereby acknowledges that the Services and the Data provided by either Party to the other may include personal information pertaining to individual consumers. In addition, Client acknowledges that the Services includes proprietary technology and information of Service Provider and Data Owners, including the methods used by a Data Owner in gathering, compiling, maintaining and processing of the Data. Accordingly, each Party shall treat such information responsibly and take reasonable steps to maintain strict confidentiality and to prevent unlawful dissemination or misuse by its employees, officers, agents or any other person with access to such information. In the case of Client, Client shall not disclose any such technology or information to any third party without the prior written consent of Service Provider unless Client can demonstrate the technology or information: (a) is part of the public domain through no breach of these Terms & Conditions or another obligation of confidence, (b) was in the possession of Client prior to disclosure by Service Provider or Data Owner, (c) was obtained by Client from a third party that was under no obligation to keep such technology or information confidential; or (d) was required to be disclosed by Legal Requirement, provided that Client discloses the minimum amount of information required to satisfy the relevant Legal Requirement.
    • 7.2. Security. Without limiting Section 7.1 above, Client shall provide for physical security of Data with the same degree of care (provided that such is at least a reasonable degree of care) that Client uses to protect its own most sensitive data. Furthermore, Client will take suitable precautions to prevent loss, compromise or misuse of any media containing consumer information while in the possession of Client and while in transport between the Parties.
    • 7.3. Retained Ownership. Nothing contained in this Agreement shall be interpreted to convey to Client or to any other party any right, title or interest in the Data of Service Provider or any Data Owner or Services, including any patent, copyright, or other proprietary right. All Client Data provided by Client to Service Provider is, and shall remain, the property of Client.
  • 8. Compliance with Laws. Each Party agrees to comply with all Legal Requirements applicable to each Party’s receipt and use of data provided to the other.
  • 9. Miscellaneous.
    • 9.1. Governing Law; Forum. These Terms & Conditions, including all rights, duties and obligations arising from or relating in any manner to the subject of these Terms & Conditions, shall be governed, construed and enforced under the laws of the State of California. Both parties agree to submit to the exclusive personal jurisdiction and venue in the state and federal courts located in the State of California, San Diego County, for any actions, suits, or proceedings, arising out of or relating to the interpretation, construction, or enforcement of these Terms & Conditions.
    • 9.2. Complete Agreement. The Purchase Order and these Terms & Conditions sets forth the entire understanding of Client and Service Provider 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.
    • 9.3. Electronic Transmission. The Parties consent to: (a) transmitting any and all communications via electronic transmission; and (b) treating any and all documents having an image of such Party's signature and which are transmitted via electronic transmission (such as by facsimile or by a portable document format ("pdf") file attached to an email) as an original writing containing Party's signature in compliance with the United States Electronic Records and Signatures in Commerce Act.