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Terms & Conditions for All Users of Cole Information Services

This agreement ("Agreement") is between you ("Client") and Cole Information Services, Inc. ("Cole") for Cole to grant Client certain license rights for consumer or business data ("Cole Data") in fixed-media directories for reference or marketing purposes. The provision and licensing of Cole Data is available through Cole's websites and includes information on how to access and use Cole Data (the "Services").

There are four parts of these Terms & Conditions:

  1. User Obligations and Guidelines
  2. License, Content, and Improper Use of Cole Data
  3. Payment Terms
  4. Disclaimers and Limitation of Liability
  5. General Terms

Part 1: User Obligations and Guidelines

  1. Confidential Treatment Under no circumstances will Client resell or otherwise disclose Cole Data to any other person, other than employees, contractors, or agents whose duties reasonably relate to the lawful business purpose for which Client obtained the Cole Data. Client hereby acknowledges that the Cole Data provided includes personal information pertaining to individual consumers, and Client is required to treat such information responsibly and take reasonable precautions to maintain appropriate confidentiality and security to prevent unlawful dissemination or misuse of Cole Data. Cole Data and the Services shall only be used as expressly authorized in this Agreement. The confidentiality requirements of this section shall survive termination of this Agreement.
  2. Compliance with Laws. Client agrees to comply with all laws, rules, and regulations ("Laws") applicable to Client's receipt and use of Cole Data. Cole reserves the right to revise the terms, conditions, or pricing under this Agreement, or the Cole Services (including without limitation the right to withdraw or restrict Cole Data), including the right to impose reasonable restrictions or requirements as necessary to comply with any Law, or to address privacy or confidentiality obligations. Client agrees to strictly comply with such restrictions or requirements. Notwithstanding anything to the contrary in this Agreement, Client understands and agrees that it is solely responsible for being aware of, interpreting and complying with all Laws. Further, no information or guidance provided by Cole may be construed as legal advice. Client is responsible for obtaining its own legal advice regarding this Agreement and compliance with Laws.
  3. Data and Intellectual Property Ownership. Client acknowledges that Cole and its data suppliers have expended substantial time, effort, and funds to create and deliver the Cole Data and Services. 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 Cole Data provided in connection with the Services.
  4. Responsibility for Access Credentials and Audit Rights.Client will only use Cole Data or the Services in association with a unique User ID and password ("Access Credentials") assigned to Client by Cole. Client may not share its Access Credentials with third parties. Inappropriate use of Client's Access Credentials is solely Client's responsibility. Client will not use anyone else's Access Credentials in association with Cole Data or the Services.

    Cole will have the right to audit Client’s and any of its agents' use of Cole Data or the Services to assure compliance with the terms of this Agreement. Client will be responsible for assuring full cooperation with Cole in connection with such audits and will provide Cole or obtain for Cole access to such properties, records, and personnel as Cole may reasonably require.

    If Client believes its Access Credentials have been compromised, Client will immediately notify Cole, including any other relevant information to help protect the security of Cole Data or the Services.

Part 2: License, Content, and Improper Use of Cole Data

  1. License. Cole hereby grants to Client a limited, non-exclusive, nontransferable license for the term of this Agreement, to use the Cole Data provided in conjunction with the Services solely for the permitted uses and in accordance with the other terms and conditions of this Agreement ("Data License"). This Data License is granted strictly and only to Client 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 use of, or access to, Cole Data.
  2. Data Restrictions The following restrictions apply to Cole Data.
    1. Use. Unless otherwise agreed, and reflected in Schedule A, Client is permitted to use the Cole Data for one of the following purposes: (i) direct mail; ii) conducting telephone solicitations; or iii) conducting telephone or direct mail surveys. Upon termination of this Agreement for any reason, all previously authorized use as described herein shall cease and Client shall promptly return or destroy all Cole Data provided under this Agreement.
    2. Resale Prohibition. Client agrees that it will not: (i) copy or otherwise reproduce any Cole Data except as necessary for back-up purposes; (ii) resell, or otherwise provide or disclose to any third party, any Cole Data, in whole or in part, for any purpose whatsoever; or (iii) attempt, directly or indirectly, to discover or reverse-engineer any confidential and proprietary criteria or methodology developed or used by Cole in performing the Services.
    3. Manner of Use. Client agrees that it will use the Cole Data provided under this Agreement for reference or marketing purposes only, in accordance with applicable Laws, and industry guidelines including but not limited to the Direct Marketing Association Guidelines (www.the-dma.org), the national Do Not Call Registry (www.donotcall.gov), Client’s own privacy policies, and in a manner that gives due consideration to matters concerning privacy and confidentiality. Client will not refer to any selection criteria or presumed knowledge about a consumer in any marketing communication. The Cole Data may not: (i) be merged or incorporated with any other third-party file without the express, written consent of Cole; (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; or (iv) to prepare, publish, clean, or maintain any directory. Client shall not grant access to the Cole Data to individuals incarcerated in prisons or correctional institutions. Client shall not combine any Cole Data with any personally identifiable consumer data collected online unless the subject consumers have been given adequate notice and choice with respect to such use, and Client has complied with and continues to comply with such notice.
    4. Internet Use. Client shall not use Cole Data or Services in any electronic solicitation or internet application without the prior written consent of Cole.
    5. Copy Review. Upon request, Client will provide Cole 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 for review and approval prior to conducting any associated solicitation or survey utilizing Cole Data. Such review shall be for the purpose of ensuring compliance with this Agreement.
    6. Security. Client shall implement the necessary administrative, technical and physical safeguards to protect Cole Data using the same degree of care, but in no event less than a reasonable degree of care, that Client uses to protect its own most sensitive data.
    7. FCRA. Client understands that Cole Data has not been collected for credit purposes and is not intended to indicate 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 Cole 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 the FCRA or any similar statute.
    8. Do Not Call ("DNC") Lists. Client acknowledges that certain laws, rules, and regulations restrict telemarketing activities, including those that permit consumers to register their phone numbers with state and federal DNC lists. At the direction of the State Attorney General Cole does not scrub Oklahoma DNC lists. Due to the varying and changing nature of such laws, rules, and regulations and the portability of phone numbers, Cole makes no warranty and disclaims all liability related to Cole Data, DNC Lists, or any other applicable Law. Client agrees to abide by all such Laws.
    9. CANSPAM. Client acknowledges that certain laws, rules, and regulations restrict email activities, such as the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C § 7701) ("CANSPAM"). Due to the varying and changing nature of such laws, rules, and regulations, Cole makes no warranty and disclaims all liability related to Cole Data, CANSPAM, or any other applicable Law. Client agrees to abide by all such Laws.
  3. Privacy and Consumer Protection Laws. Cole Data contains information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information linked or linkable to a specific individual ("Personally Identifiable Information" or "PII"). Various state, federal, and international laws govern the privacy, security, and integrity of PII, such as the Gramm-Leach-Bliley Act (15 U.S.C. § 6801). There are also various state, federal, and international laws which regulate how and when business can engage in telemarketing, such as the Telephone Consumer Protection Act (47 U.S.C. § 227) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C § 7701). It is Client's sole responsibility to use Cole Data and the Services in compliance with all applicable Laws. Illegal or unauthorized use or disclosure of Cole Data may result in civil or criminal penalties.
  4. Indemnification. Client shall indemnify, defend, and hold Cole harmless from all claims, demands, causes of action, debt, or liability, including reasonable attorneys' fees, arising from any claims relating to its use of the Cole Data or Services in violation of this Agreement or applicable Law.

Part 3: Payment Terms

  1. Invoice Terms.Client will pay Cole for the Services in the amounts agreed upon and set forth in the attached Schedule A. Unless otherwise provided in the attached Schedule A, Cole shall have the right to revise or amend the pricing by providing thirty (30) days' prior notice to Client before such revision or amendment becomes effective. Payments shall be made to Cole within thirty (30) days of the invoice date. The prices and rates for the Services do not include shipping costs or any applicable sales or use taxes, and Client will pay or reimburse Cole for such shipping costs and taxes.

    Client must notify Cole of any invoice disputes within 10 days of receipt, or else an invoice shall be deemed valid and accepted by Client. If Client fails to timely pay any invoice, Client shall 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.

    By accepting these terms Client agrees that Cole is authorized to charge subscription fees at the then-current rates using the payment method selected by Client. Cole will bill fees at the beginning of Client's subscription and each period thereafter unless and until Client cancels or this Agreement otherwise terminates.

    Client may cancel a subscription no later than five (5) days prior to a renewal date in order to avoid the next billing cycle's subscription fees. Monthly payments are nonrefundable and Cole will not give refunds or credits for partial periods. Downloading more than 2,000 records within the first 30 days of the term of this Agreement voids Cole's 30-day money back guarantee.
  2. Sales and Use Tax Notice If sales or use tax was not charged by Cole for your purchase, it is your responsibility to determine, report, and submit any sales or use taxes due to your state.

Part 4: Disclaimers and Limitation of Liability

  1. Warranty and Disclaimers. Cole warrants to Client that Cole will use commercially reasonable efforts to deliver the Services and Cole Data in a timely manner. Because the Services and Cole Data include information provided to Cole by third parties, Cole cannot, and will not, be an insurer or guarantor of the accuracy or reliability of the Services or Cole Data. THE WARRANTY IN THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY COLE HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES AND COLE DATA. COLE MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY COLE DATA, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY COLE HEREUNDER, AND COLE HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY, COMPLETENESS, OR CURRENTNESS OF COLE DATA OR SERVICES, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COLE OR ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY.
  2. Not Legal Advice. Cole does not provide legal advice or opinions regarding Cole Data, the Services or Client's use of Cole Data or the Services. Client assumes total responsibility and risk for its use of Cole Data or the Services. Cole Data and the Services are for informational purposes only and it is Client's sole responsibility to determine whether its use of Cole Data or the Services violate any Law.
  3. External Links. The Services may contain links to external websites or other services. Unless Cole states otherwise, the existence of an external link does not mean the link will be of benefit to Client or that it is approved by Cole. Cole has no responsibility for information available from external links.
  4. Updates. Cole may make revisions, updates, and improvements to the Services at any time and without notice.
  5. Infected or Corrupted Materials. To the extent Client downloads files from the Cole, Client understands that Cole cannot and does not guarantee or warrant that such files will be free from infection, viruses, worms, Trojan Horses, or other malicious code that has contaminating or damaging properties.
  6. Limitation of Liability. Client acknowledges that Cole does not investigate the purpose of Client inquiries or requests for Services or Cole Data. Client also acknowledges that the prices Cole charges for the Services and Cole Data are based upon Cole's expectation that the risk of any loss or injury that may be incurred by use of the Services or Cole Data will be borne by solely by Client. Client therefore agrees that it is solely responsible for determining whether the Services and Cole Data comply with Cole's obligations under this Agreement. If Client reasonably determines that the Services or Cole Data do not comply with Cole's obligations, Client shall notify Cole in writing within ten (10) days after receipt of the Services or Cole Data in question. Client’s failure to notify Cole shall mean that Client accepts the Services and Cole Data as is. If Client notifies Cole within ten (10) days after receipt of the Services or Cole Data, then, unless Cole reasonably disputes Client’s claim, Cole shall, at its option: (i) re-perform the Services in question or issue Client a credit for the amount Client paid to Cole for the nonconforming Services; or (ii) redeliver the Cole Data. COLE’S RE-PERFORMANCE OF THE SERVICES OR REDELIVERY OF THE COLE DATA, OR THE CREDIT OF ANY FEES CLIENT HAS PAID FOR SUCH SERVICES OR COLE DATA, SHALL CONSTITUTE CLIENT’S SOLE REMEDY AND COLE’S MAXIMUM LIABILITY UNDER THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON COLE, THEN CLIENT AGREES THAT COLE’S TOTAL LIABILITY FOR ANY OR ALL OF CLIENT’S LOSSES OR INJURIES FROM COLE’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 COLE UNDER THIS AGREEMENT FOR THE PARTICULAR SERVICES OR COLE DATA WHICH ARE THE SUBJECT OF THE ALLEGED BREACH DURING THE SIX-MONTH PERIOD PRECEDING THE ALLEGED BREACH. CLIENT COVENANTS THAT IT WILL NOT SUE COLE FOR ANY AMOUNT GREATER THAN SUCH AMOUNT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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 SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.

Part 5: General Terms

  1. Term. The term of this Agreement shall begin upon the Effective Date set forth below and shall continue in effect until the termination or expiration of this Agreement or any supplementary Schedules issued pursuant to this Agreement, unless earlier terminated in accordance with the terms of this Agreement.
  2. Termination for Cause. If either party is in material breach of this Agreement, the non-breaching party may terminate this Agreement, as applicable, 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 Cole immediately if, in Cole's reasonable and good-faith judgment any Services or Cole Data are being used or disclosed by Client contrary to this Agreement. In the event that this Agreement is terminated as a result of the 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 Cole under this Agreement or any Schedule.
  3. Revision of Terms and Conditions. Cole may revise these Terms and Conditions at any time. Client should periodically read these Terms and Conditions to determine whether any updates affect Client's use of Cole Data or the Services. Client's continued use of Cole Data or the Services means Client continues to agree to these Terms and Conditions and any revisions.
  4. Suspension of Services. In addition to terminating for cause, Cole may suspend or cancel Services if Client fails to meet any of its obligations under of this Agreement.
  5. Binding Arbitration. Any dispute arising out of or relating to this Agreement or any Schedule shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in Nebraska. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys’ fees and costs. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief, or from pursuing an action to collect unpaid amounts due under this Agreement, in a court of competent jurisdiction.
  6. 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, or shared by Client without Cole's prior written consent.
  7. 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 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, utility or communication failures or delays, fires, earthquakes, floods, epidemics, riots, and strikes. If a party becomes aware that such an event is likely to delay or prevent timely 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 performance whenever such causes are removed.
  8. Choice of Law. This Agreement is governed by and construed in accordance with the substantive laws of the State of Nebraska.
  9. 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 Cole and Client shall be addressed to the addresses provided below each party’s signature, or to such other address as either party shall designate in writing to the other from time to time.
  10. Complete Agreement. This Agreement sets forth the entire understanding of Client and Cole 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.
  11. Amendments. This Agreement may only be amended in writing signed by authorized representatives of both parties.
  12. Authority to Sign. Each party represents that the person signing this Agreement has all right, power, and authority to sign this Agreement or any Schedule on behalf of such party.
  13. Electronic Means. Each party desires to facilitate certain transactions pursuant to this Agreement by exchanging documents, records, and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Cole and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Nebraska.