General Terms and Conditions for Use of 4Profiles Data and Services
These general terms and conditions are part of the contract to which they are attached (the "Agreement") and apply to your use of any marketing or email data provided by 4Profiles referred to collectively as the "Data" or “Profile” or “Contact”.
(a)The term “4Profiles Property” means all programs, files, systems, documentation, information, content, graphics, page layouts, site designs, user interfaces utilized or provided by 4Profiles, work product produced by 4Profiles, and derivate works of any of the foregoing, including, without limitation, the website or websites made available to you by 4Profiles, any HTML programming performed as part of providing you with Data and any other special programs, functionalities, interfaces and other work product, ideas, concepts or techniques which 4Profiles may develop, use or rely upon in providing the Data to you.
(b) All 4Profiles Property shall be and will remain the property of 4Profles LLC.
(c) As between you and 4Profiles, 4Profiles shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the 4Profiles Property and the Data.
Upon your execution of the Agreement and the payment of all amounts due 4Profiles, you are granted a personal, nontransferable and nonexclusive license to use the Data solely for your direct marketing, market research and customer prospecting purposes, in strict accordance with the terms of the Agreement. Upon expiration or termination of the Agreement, you shall discontinue use of the Data and, as requested by 4Profiles, either (a) return the Data to 4Profiles without retaining any copies thereof or any notes or other information thereon or (b) provide a certificate, executed by you, in form and substance satisfactory to 4Profiles, that the Data has been destroyed in such a manner to render the Data permanently unreadable and unrecoverable.
(a) Unless specifically authorized in advance and in writing by 4Profiles, you will not share, sell, transfer or otherwise make the Data available to any third person or entity and you will use your best efforts to prevent the misuse or unauthorized use of the Data by any third person or entity.
(b) You will not name or refer to 4Profiles or your use of the Data in any of your advertisements or promotional or marketing materials.
(c) You will not use the Data for consumer credit purposes, underwriting consumer insurance, employment purposes, tenant screening purposes, for any other purpose covered by the federal Fair Credit Reporting Act or for any other purpose not expressly authorized by the Agreement.
(a) Your use of the Data will comply with all applicable federal, state, local and foreign laws, statues, rules and regulations (“Laws”), including Laws regarding telemarketing, email and facsimile marketing, customer solicitation and all applicable guidelines of the Direct Marketing Association (“DMA”). If you are not a member of the DMA, you will use your best efforts to comply with the DMA’s guidelines.
(b) Your use of any email Data will comply with all applicable Laws, including the CAN-SPAM Act, COPPA, and any State Registry laws.
(c) 4Profiles reserves the right to review your use of the Data to ensure compliance with this Agreement, but any failure of 4Profiles to review such use will not constitute acceptance of such use or waive any of 4Profiles’s rights hereunder or limit any of your obligations with respect to the Data. At any time upon at least 3 days’ notice, 4Profiles may audit your records to determine whether you are in compliance with this Agreement and you will make available to 4Profiles or its representatives all records necessary for the conduct of such an audit.
The data is manually and automatically verified and updated using proprietary software’s and affiliated resources and we guarantee 78% accuracy on email addresses and 90% on remaining data. 4Profiles does not assure or warrant the correctness, comprehensiveness or completeness of the data and disclaims any and all warranties of any nature, express or implied, including any warranties or merchant-ability, except as provided in the next sentence. You will have 10 business days from your receipt of the data to inspect and notify 4Profiles of any problems or mistakes in the data and if you notify 4Profiles within the 10 business day period, the problem or mistake will be corrected at no additional charge. In a case where your campaign generates an email bounce percentage in excess of the guarantee within a 45 business day period we will issue a credit note as per pro-data email addresses due.
Except as provided in the last sentence of Section 5, 4Profiles will not be liable for any claim, demand, liability, damage, cost or expense (including attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or other damage caused in whole or in part or directly or indirectly by any use of the Data or any alleged or actual failure by 4Profiles to comply with the terms of the Agreement, whether or not any such damages were foreseeable or whether 4Profiles was advised of the possibility of such damages. 4Profiles’s maximum liability under the last sentence of Section 5 will not exceed the amount you paid 4Profiles under the Agreement.
You shall indemnify, defend and hold harmless 4Profiles, its directors, officers, employees, independent contractors, independent Agreementor’s and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Data or any violation of the Agreement or any violation of Laws.
You acknowledge that, given the technical nature of resources 4Profiles requires to provide the Data to you, temporary interruptions or delays may occur in the provision of Data and that any such interruptions shall not result in 4Profiles having any liability to you or others and shall not suspend or eliminate your payment obligations to 4Profiles or provide you with any refund rights for amounts previously paid to 4Profiles.
We will provide the data via excel or comma separated value (.csv) format within the agreed time (4-10 business days) depending on the size of the data. Any interruptions, delays or operational issues will be conveyed to you as provided in Section 8.
You may not assign your rights or obligations under the Agreement to any other person or entity without the prior written consent of 4Profiles, whether by operation of law or otherwise, and any attempt to do so shall be void.
In addition to all other legal rights and remedies available to 4Profiles for any apparent, threatened or actual breach or violation of the Agreement by you, 4Profiles has the right to terminate the Agreement and demand immediate return or destruction of the Data at any time if 4Profiles believes you are not complying in full with the Agreement.
The Agreement shall be governed by and construed under the laws of the State where the company is formed, without regard for the principles of conflicts of law of that State or any other state. Any litigation or other dispute relating to or arising under the Agreement shall only be brought in the state or federal courts located as mentioned above and you agree to submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any such proceeding in those courts.
(a) Payment: You agree to pay 4Profiles a fee in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Fees charged are nonrefundable. In the case of subscription products, the subscription term shall be effective for the agreed upon period, after which the subscription term shall automatically renew for the specified renewal period (if any) at the then current subscription price.
(b) Interest Charges: There will be interest charges on any amounts which you fail to pay when due at the rate of 1.5% a month, or such lower rate as may be equal to the maximum rate allowed by applicable law, on the unpaid amount.
The Agreement contains the entire understanding between you and 4Profiles and supersedes any prior understandings or Agreements, oral or written, relating to the subject matter of the Agreement. The Agreement may only be amended by a document signed by you and 4Profiles. No waiver of any breach of the Agreement shall be deemed a waiver of a future breach, whether of a similar or different nature, and no waiver shall be effective unless in writing signed by the waiving party.
The Agreement may be executed in its original, by facsimile or in electronically transmitted portable document format and it may be executed in any number of counterparts, each of which shall be deemed an original of the same document.