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.
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 customer 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.
- InfoBase Economic Assessments. In addition the foregoing permitted uses and restrictions, the terms and conditions set forth below shall apply to End User’s license of the InfoBase Economic Assessments Data Products. Without limitation of the foregoing, End User shall not use the Data for credit granting, credit monitoring, account review, accounts receivable management, insurance underwriting, employment, or any other “permissible purpose” as defined by the Fair Credit Reporting Act (15 U.S.C. Sec. 1681 et seq [“FCRA”]), Federal Trade Commission interpretations of the FCRA, and similar state statutes, for permitted uses set forth in the Gramm-Leach-Bliley Act,(15 U.S.C. '6805, et seq), or applicable regulations or in a manner contrary to the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.).
- 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.
- End User will to use the Data in any manner to discontinue, cancel, or deprive any individual or group of individuals of an already existing right or benefit.
- Mail Piece/Telemarketing Script Approval. End User agrees to only use the Data in compliance with applicable law, regulation, or industry guidelines, such as those of the Direct Marketing Association.
- End Users comply with the Guidelines set forth below for mail piece/telemarketing script approval. End User agrees that Company will require complete sample mail pieces and telemarketing scripts for approval prior to receipt of order:
- Guidelines for Mail Piece/Telemarketing Script Approval.
- What is the consumer being offered? The offer should be easy to read and understand.
- Who is extending the offer? The street address and/or phone number of the marketer should be clearly present on both mail offers and telemarketing scripts.
- Does the offer seem misleading or deceptive? Do not approve offers that are deceptive, fraudulent or “seem too good to be true.” For example, “We guarantee that you will lose 20 pounds in one month,” “Your asthma will be cured forever….”
- Would you want your family and friends to receive this offer? If you have any doubts about an offer’s integrity, please review with your mailer and/or an Acxiom compliance rep.
- Does the offer make reference to specific selection criteria? The offer should not have specific wording that includes the data selected. For example, “Because you have diabetes and smoke,” “Because your child is walking now,” “Due to your recently discharged bankruptcy….”
- Are the attributes selected appropriate for the intended use? For example, if the offer is to sell books, most likely mortgage amount would not be appropriate as a selection criterion.
- Is the envelope misleading? For example, does the envelope look like an official government document? Does it say “registered mail” even though it is not? Does it look like a bill or collection notice (i.e., the return address company is “Payment Compliance Center”)?
- Per the Telephone Consumer Protection Act: During a live call placed to a consumer’s home, a telemarketer must disclose the following elements. Because of this requirement, these elements should also be on telemarketing scripts:
- The name of the individual caller;
- The name of the company on whose behalf the call is being made;
- The reason for the call; and
- A telephone number or address at which the company can be contacted.
- Some examples of wording that will help you recognize when a marketing offer is unacceptable are:
- Wording that implies credit approval: “You are Pre-Approved,” “You have been Approved,” “You are Qualified,” “You Have Been Selected.”
- Wording that reveals selection criteria: “You qualify for this product because you are a diabetic,” “Because you’re Hispanic,” “You are over 65,” “Because you have several children.”
- Wording implicating individual knowledge of the recipient: “Because you have diabetes,” “Because you are a renter, you would like our renters insurance,” “You have nothing to lose but your bad credit,” “Regardless of your poor credit history,” “Because you have a discharged bankruptcy.”
- New parent selection criteria revealed: “Because you are a new parent,” “We heard you were expecting,” “Your new baby will love this product.”
- Some examples of acceptable wording:
- Invitations to apply for credit: “You may be qualified,” “You are invited to apply,” “You may be approved,” “Would you like the opportunity to apply?”
- “Are you or anyone in your household Hispanic? If so, please take this survey.”
- “You may benefit from this offer for whatever product.”
- “You may be able to improve your mortgage rate.”
- “If you are a new parent, you may benefit from…”
- Guidelines for Mail Piece/Telemarketing Script Approval.
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.
Suppression Files. The Data products (“Products”) are built using Suppression Files appropriate for that Product, including the Direct Marketing Association’s Mail Preference Service and Telephone Preference Service files, e-mail suppression files, Data Owner opt-out files, FTC DNC file and the state Attorneys General suppression files, to flag an individual consumer as having opted out of receiving marketing solicitations. Except with regard to End User’s customers, End User agrees to honor such consumers’ elections not to receive marketing solicitations in any use of the Data and in the event that End User does not honor such consumers’ choice not to receive marketing solicitations, COMPANY and the Data Owner may cease delivery of the Data and/or Services and/or terminate this Agreement immediately. End User acknowledges that neither COMPANY nor Data Owner guarantees that the names or telephone numbers of all such consumers have been flagged or removed from the Data supplied to End User hereunder. End User further represents that if End User is telemarketing in a state that requires registration, End User has registered in the applicable state. End User acknowledges that it is End User’s sole responsibility to ensure that the most current suppression information has been applied to its files before such files are used for marketing and End User agrees to defend, indemnify and hold harmless COMPANY and the Data Owner, as set forth below, due to End User’s failure to comply with its obligations set forth in this Section.
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.
CAN-Spam Compliance. Exact Data 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.
Exact Data makes every effort is made 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.