List Management Terms and Conditions

This List Rental Agreement (this “Agreement”), by and between List Renter (the party receiving the Order Confirmation) and Data Axle, Inc. (“Data Axle”), either directly or through its subsidiaries or affiliates, entered into and effective upon the date List Renter accepts the Agreement, (“Effective Date”), sets forth the terms and conditions governing the rental of the List from Data Axle to List Renter. The parties hereby agree as follows:

1. This Agreement shall govern all List orders agreed to by Data Axle and List Renter during the period beginning on the Effective Date and ending twelve (12) months thereafter (the “Term”).

2. Data Axle shall provide the data selected by List Renter pursuant to the criteria specified on the applicable order (“List”). Each order may set forth additional details related to List Renter’s associated mailing.

3. Data Axle will invoice List Renter the fees on or about the day Data Axle delivers the List. List Renter shall pay all invoiced amounts no later than sixty 60 days following the mail date.

4. List Renter acknowledges and agrees that unless specifically agreed to otherwise in the order, its use of the List shall be limited to a one-time use, for the purpose of direct marketing: (i) List Renter’s products or services; or (ii) products or services of List Renter’s customer (“Customer”) (the “Permitted Purpose”). The Permitted Purpose is further limited to the specific product or service described in the creative sample or description submitted to Data Axle in connection with each order. List Renter expressly agrees, represents and warrants that, subsequent to its receipt of Data Axle’s approval of such sample, List Renter will not change, substitute, alter, add, delete, amend or otherwise modify such mailing in any fashion, except as set forth below. In the event List Renter makes any change to the sample after initial delivery, then List Renter shall provide Data Axle with written notice of the change and the Parties shall agree in writing (email acceptable) memorializing the change to the sample prior to any mailing by List Renter or its mailhouse, subject to Data Axle’s right to reject the sample in Data Axle’s sole discretion. Data Axle shall not be liable for any damages or loss arising from a change to the sample that was not mutually agreed upon by the Parties. List Renter agrees that in connection with its use of the List it will only use a third party service bureau with the approval of Data Axle.

5. In the event Data Axle performs email deployment on behalf of List Renter or Customer:

a. List Renter will provide to Data Axle an opt-out suppression file (“Suppression File”) that includes all email addresses of individuals that have previously opted-out of receiving commercial electronic mail messages from you. The Suppression File will be de-duped against the mailing file. It is List Renter’s sole responsibility to ensure that the Suppression File is accurate and current as of the campaign transmission date. If List Renter elects not to, or otherwise fails to, provide Data Axle a Suppression File, List Renter acknowledges that the failure to suppress from any email campaign the email address of an individual who has previously requested to not receive commercial electronic mail message from List Renter could result in a violation of the CAN-SPAM Act, and corresponding state and local laws, rules and regulations and you agree to indemnify, defend, and hold the List Owner(s) and Data Axle harmless from and against any claims, demands, suits, causes of action, awards, judgments and liabilities arising out of or related to such failure to provide a Suppression File.
b. List Renter will include the physical postal address within the body copy of its email message.
c. List Renter will provide accurate and non-deceptive messages and subject lines.
d. In the event that Data Axle provides opt-outs from any email campaigns utilizing the List(s), such opt-outs are provided for the sole purpose of updating your Suppression File. List Renter agrees not to sell, lease, exchange, or otherwise transfer, release, or disclose the e-mail addresses provided for any purpose other than suppression from List Renter’s and/or List Renter’s Customer’s future mailings.

6. List Renter acknowledges that the List has been and will be seeded to prevent any improper use of the List and List Renter shall not remove or take steps to discover such seeds. List Renter shall not use the List or any portion thereof for any purpose other than the Permitted Purpose. Said restrictions shall include but are not limited to:

a. Enhancing its house file or any other file by using the names, addresses or any other information, whether specific or inferred, obtained from the List.
b. Retaining the List for coding enhancements, analysis, or any other purpose.
c. Retaining change of address information on a List obtain prior to, or expressly for, a given mailing; nor may a List Renter, or its service organizations, employ an address correction request program on Lists for the purpose of retaining the information derived from the program.
d. Employing any method to detect decoy names on the List or alter or eliminate decoys from the List;
e. Adding telephone numbers to the List, nor use it for telephone solicitations, without prior permission from the Data Axle.
f. Manipulating merge purge programs to give improper weight to any List.
g. Enhancing the List with additional information, other than standard merge purge match-coding, nor tag computer records with information related to or derived from the List.
h. Disclosing, transferring, duplicating, reproducing, or retaining in any form all or part of the List(s).

7. List Renter shall not, and shall cause it’s Customer, if any, to not, disclose the source of the List or identify Data Axle in the mailing or any materials in any way except to the extent that such disclosure is legally required. List Renter shall ensure that its use and/or its Customer’s use of the List and any and all mailings made to the List, or any portion of the List, comply with all laws and all applicable federal, state, and local laws, statutes, rules, regulations, and ordinances, including but not limited to privacy, data protection, direct marketing, CAN-SPAM, Regulation (EU) 2016/679 (General Data Protection Regulation), 47 U.S.C. § 227 (the Telephone Consumer Protection Act), as well as any other relevant state “do-not-call” laws in effect in the home state of the individual contacted at the time of the call (collectively, “Applicable Law”). List Renter represents and warrants that it will at all times comply with highest industry standards in the direct mail advertising industry.

8. List Renter represents and warrants that its proposed materials, transmissions and content to be used with the List do not and will not contain any of the following: (i) unlawful, threatening, abusive, libelous, defamatory, pornographic, obscene, profane or otherwise objectionable information; (ii) information constituting or encouraging conduct that would violate any applicable federal, state, local or international laws or that would give rise to civil liability; (iii) information, materials, audio, graphics, code or software that infringes or violates any third party’s copyright, trademark or other intellectual property right; (iv) misleading or deceptive information or misrepresentation; (v) chain letters, illegal pyramid or similar schemes; or (vi) information that would imply endorsement, affiliation or sponsorship with any third party without written consent of such third party.

9. List Renter acknowledges and agrees that Data Axle cannot and does not guarantee that any portion of the List is GDPR or CCPA compliant. It is the responsibility of List Renter to ensure any communications are GDPR and CCPA compliant. Data Axle does not accept any liability for non-GDPR or TCPA compliant actions taken by List Renter or its Customer.

10. List Renter shall maintain and prominently post a privacy policy that complies with all Applicable Law.

11. List Renter shall use and maintain the List in compliance with all Applicable Law.

12. List Renter agrees that it does not and will not: (i) use the List as a factor in establishing an individual’s eligibility for credit, insurance, or employment, or in connection with flood eligibility criteria, credit repair or title insurance; (ii) use the List to engage in unfair, deceptive or illegal practices; (iii) unless approved by Data Axle in writing, use the List to benchmark against other information; or (iv) share the List or any of its contents with a third party.

13. If, after the List has been sent to List Renter, or its designee, the List Renter uses, or causes its agents, employees, contractors or anyone else who shall be given access to the List(s) by the List Renter to use the List(s) contrary to any provision of this Agreement, the List Renter shall be held unconditionally responsible for any and all damages sustained by Data Axle and the List Owner including, but not limited to, all costs and reasonable attorneys’ fees related to litigation. The List Renter also consents to the entry of an order enjoining any use of the List in violation of this Agreement to prevent further and continuing damages.

14. THE LIST IS PROVIDED ON AN “AS IS” BASIS AND DATA AXLE HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES TO CLIENT OR TO ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF THE LIST. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, NEITHER DATA AXLE NOR ANY OF ITS THIRD-PARTY SUPPLIERS OR SERVICE PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPREHENSIVENESS OR COMPLETENESS OF THE LIST.

15. List Renter agrees to defend, indemnify and hold harmless Data Axle, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns from and against any and all claims, actions, causes of action, suit, proceedings, damages, liabilities, losses, judgements, costs and expenses of any nature whatsoever (including, but not limited to, attorneys’ fees and expenses) however incurred, arising from, resulting from, relating to or based upon: (i) the use of any List by List Renter or any of its agents, employees, contractors, third party mail houses or list processors, or other third parties; (ii) any acts or omissions of List Renter or any of its agents, employees, contractors, third party mail houses or list processors, or other third parties; (iii) any offers, solicitations, communications, materials, goods, or products promoted or referenced on mailings to the List; or (iv) List Renter’s actual or alleged breach of this Agreement or violation of Applicable Law.

16. DATA AXLE SHALL NOT BE LIABLE TO LIST RENTER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES WHICH ARISE OUT OF THE PURCHASE, SALE AND/OR USE OF THE LIST OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT OR PURSUANT TO SOME OTHER THEORY AND WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. IN NO EVENT SHALL DATA AXLE’S MAXIMUM AGGREGATE LIABILITY TO LIST RENTER UNDER ANY LEGAL THEORY FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, RENTAL, SALE AND/OR USE OF THE LIST OR ANY TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT EXCEED THE ACTUAL AMOUNT PAID BY LIST RENTER TO DATA AXLE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE FIRST CLAIM BY LIST RENTER UNDER THIS AGREEMENT.

17. It is understood and agreed that any violation of any terms of this Agreement by the List Renter will cause Data Axle irreparable harm and damages, and that in the event of any breach by the List Renter, the List Renter shall pay to Data Axle an amount equal to ten times (10x) the rental rate of the List as liquidated damages, together with all costs and expenses associated with any litigation relating to such breach, including, but not limited to, attorney’s fees and court costs. The List Renter shall pay such liquidated damages on demand.

18. List Renter shall ensure that any mail house, list processor, or other third party that has received the List pursuant to this Agreement irretrievably purges and deletes the List from its systems within fifteen (15) days after the mailing has been sent. List Renter shall cause all of its affiliates and all mail houses, list processors, and other third parties, including Customers, that receive or process the List pursuant to this Agreement to comply with all of List Renter’s obligations under this Agreement. List Renter will be liable for any breach of this Agreement by, or caused by, any such affiliate mail house, list processor, Customer or other third party.

19. List Renter may not assign any rights granted hereunder, and any such assignment without Data Axle’s prior written approval shall be null and void.

20. List Renter agrees and acknowledges that Data Axle acts only on behalf of the list owner, for the sole purpose of any orders hereunder. The List Renter agrees that all payments are to be made and remitted to Data Axle.

21. List Renter expressly agrees that it will not knowingly sell or otherwise distribute any information about children contained in any List for any purpose without the prior written consent of Data Axle.

22. To the extent that a provision of this Agreement conflicts with any other prior or contemporaneous written or oral agreements or communications or click-through, shrink wrap, browse-wrap or other online terms, the terms of this Agreement shall supersede and govern.

23. This Agreement cannot be modified to any extent except in writing signed by both parties hereto and shall be governed by the laws of the state of Nebraska.