End User License Terms
Criss Cross Directory (Electronic Versions)
STANDARD TERMS AND CONDITIONS
The following terms and conditions shall apply to Client’s use of the Criss
Cross 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 Criss Cross 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 theSE Terms and Conditions” button below, 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 Criss Cross
& Woodard Information Services (“Criss Cross”) and the Client. This
Agreement contains the standard terms and conditions for Criss Cross licensing
of consumer and/or business data accessed through its electronic Criss Cross
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. Criss Cross 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 Criss Cross for the
Services (each a “Services Invoice”), unless earlier terminated in accordance
herewith.
3. License. Criss Cross hereby grants to Client a limited, non-exclusive,
nontransferable license for the term of this Agreement, to use the data (“Criss
Cross 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 Criss Cross 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 Criss Cross Data.
4. Fees and Payment.
Client will pay Criss Cross for
the Services in the amounts reflected in the Services Invoice(s). Unless
otherwise provided in the Services Invoice(s), Criss Cross 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 Criss Cross of disputed items within ten (10) days of their
receipt. Payments shall be made to Criss Cross 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 one-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 Criss
Cross 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 Criss Cross
Data that Criss Cross delivers to Client. Client hereby acknowledges that the
Services and/or Criss Cross 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 Criss Cross 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 Criss Cross Data. Criss Cross 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 Criss
Cross 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 Criss Cross 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 Criss Cross 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 Criss Cross immediately upon written notice to Client if in Criss Cross’
reasonable good faith judgment any Services and/or Criss Cross 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 Criss Cross under this Agreement or
any Schedule.
9.
Data Restrictions. The following data restrictions apply to
Client’s use of the Criss Cross Data.
9.1
Use. Client is permitted to use the Criss Cross 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 Criss Cross Data and confirm
same in writing to Criss Cross.
9.2
Resale Prohibition. Client agrees that it will not, (i) copy or otherwise
reproduce any Criss Cross Data except as necessary for back up or security
purposes, (ii) resell, or otherwise provide or disclose to any third party, any
Criss Cross 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 developed or used by
Criss Cross in performing the Services.
9.3
Manner of Use. Client agrees that it will use the Criss Cross 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 Criss
Cross 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 Criss Cross Data refer to
any selection criteria or presumed knowledge about the recipient. Client
will not cause or permit the Criss Cross Data to, (i) be merged or incorporated
with any other non-Client third party file without the express written consent
of Criss Cross, (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) to
prepare, publish, clean or maintain any directory, and/or (v) display the zip
code(s) of a business listing in any online Directory. Client shall not
grant access to the Criss Cross Data to individuals incarcerated in prisons or
correctional institutions. Client shall not combine any Criss Cross 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.
9.4
Internet Use. Client shall not use Criss Cross Data or Services in any
electronic solicitation or internet application without the prior written
consent of Criss Cross.
9.5
Copy Review. Upon request, Client will provide Criss Cross 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 Criss Cross Data. Such review
shall be for the purpose of ensuring consistency with the restrictions set forth
in this Agreement. Criss Cross may suspend or cancel Services where Client
fails to comply with this requirement.
9.6
Security. Client shall provide for the physical security of Criss Cross
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 data.
9.7
FCRA. Client understands that Criss Cross 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 Criss Cross 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.
9.8
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 Criss Cross Data ,
Criss Cross makes no warranty that the names or telephone numbers of such
individuals have been identified on or deleted from the Criss Cross Data and
shall have no liability with respect thereto
10. Warranty and Disclaimers.
Criss Cross warrants
to Client that Criss Cross will use commercially reasonable efforts to deliver
the Services and/or Criss Cross Data in a timely manner. Because the
Services and/or Criss Cross Data involve conveying information provided to Criss
Cross by other sources, Criss Cross cannot and will not, for the fee charged for
the Services and/or Criss Cross Data, be an insurer or guarantor of the accuracy
or reliability of the Services and/or Criss Cross Data. THE WARRANTY IN
THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY CRISS CROSS HAS GIVEN
CLIENT WITH RESPECT TO THE SERVICES and/or CRISS CROSS DATA. CRISS CROSS
MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES, ANY CRISS CROSS DATA, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE)
SUPPLIED BY CRISS CROSS HEREUNDER, AND CRISS CROSS HEREBY 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
Criss Cross charges for the Services and/or Criss Cross Data are based upon
Criss Cross’ expectation that the risk of any loss or injury that may be
incurred by use of the Services and/or Criss Cross Data will be borne by Client
and not Criss Cross. Client therefore agrees that it is responsible for
determining that the Services and/or Criss Cross Data are in accordance with
Criss Cross’ obligations under this Agreement. If Client reasonably
determines that the Services and/or Criss Cross Data do not meet Criss Cross’
obligations under this Agreement, Client shall so notify CRISS CROSS in writing
within ten days after receipt of the Services and/or Criss Cross Data in
question. Client’s failure to so notify CRISS CROSS shall mean that Client
accepts the Services and/or Criss Cross Data as is. If Client so notifies
Criss Cross within ten days after receipt of the Services and/or Criss Cross
Data, then, unless Criss Cross reasonably disputes Client’s claim, Criss Cross
shall, at its option, either reperform the Services in question or issue Client
a credit for the amount Client paid to Criss Cross for the nonconforming
Services, and/or re-deliver the Criss Cross Data. Criss Cross’ REPERFORMANCE OF
THE SERVICES OR RE-DELIVERY OF THE CRISS CROSS DATA, OR THE REFUND OF ANY FEES
CLIENT HAS PAID FOR SUCH SERVICES OR CRISS CROSS DATA, SHALL CONSTITUTE CLIENT’S
SOLE REMEDY AND CRISS CROSS’ SOLE RESPONSIBILITY AND MAXIMUM LIABILITY UNDER
THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE,
LIABILITY IS IMPOSED ON CRISS CROSS, THEN
CLIENT AGREES THAT CRISS CROSS’S TOTAL LIABILITY FOR ANY OR ALL OF CLIENT’S
LOSSES OR INJURIES FROM CRISS CROSS’S 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 CRISS CROSS UNDER THIS
AGREEMENT FOR THE PARTICULAR SERVICES OR CRISS CROSS DATA WHICH ARE THE SUBJECT
OF THE ALLEGED BREACH DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED BREACH
BY CRISS CROSS. CLIENT COVENANTS THAT IT WILL NOT SUE CRISS CROSS or its
suppliers FOR ANY AMOUNT GREATER THAN SUCH AMOUNT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO
EVENT SHALL Criss Cross 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 Criss
Cross 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.
Audit. Criss Cross will have the right to audit Client’s and any of
its agent’s use of the Services and/or Criss Cross Data to assure compliance
with the terms of this Agreement. Client will be responsible for assuring
full cooperation with Criss Cross in connection with such audits and will
provide Criss Cross or obtain for Criss Cross access to such properties, records
and personnel as Criss Cross may reasonably require for such purpose.
14.
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 Criss Cross’ prior written consent.
15.
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.
16.
Choice of Law. This Agreement is governed by and construed in
accordance with the internal substantive laws of the State of Illinois, without
regard to conflicts of law principles.
17.
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 Criss Cross 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.
18. Complete Agreement.
This Agreement, sets forth the
entire understanding of Client and Criss Cross 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.
19. Amendments.
This Agreement may be amended by Criss Cross upon electronic notice to
Client in accordance with the terms hereof.
20. Survival. The provisions of Sections 5-15, 16, 17, 18 and 20, 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.