BB Direct, Inc
Master List Rental Data Use Agreement
1) Background: BB Direct procures data from various national databases, which is derived from various sources. Customer wishes to obtain list counts and orders marketing lists selected from various sources that BB Direct utilizes. These terms and conditions are incorporated into and constitute the Agreement made between BB Direct and Customer, concerning certain compilations of information and data provided to the Customer for limited use. The pricing for use of such data will be provided on a per order basis.
2) Term: The term of this Agreement shall be on year from the Effective Date (“Initial Term”). After the Initial Term, the Agreement will be automatically renewed annually on the anniversary of the Effective Data without action of the parties. Either party may terminate this Agreement at any time by giving thirty (30) days prior written notice to the other party. Pricing will be subject to change at any time.
3) Restrictions and Conditions on Use of the Data:
a) Data furnished by BB Direct to the Customer may be used by Customer, or their own customers as end users in connection with their own marketing programs, and for no other purpose. Data is for list rental purposes only and, unless otherwise specified, is for one-time use only. Data ordered by Customer for Customer’s End User may be used for Mailing or Telemarketing use only, or for the End User’s marketing programs. Title to any database information or database list will not be sold, conveyed or otherwise transferred to any such customer or third party.
b) Marketing material should not make reference to any selection criteria or presumed knowledge regarding the intended recipient of such solicitation, and must be in good taste and of the highest quality.
c) Customer may not use or permit the use of the data in connection with the preparation, publication, cleaning or maintenance of any directory of any nature. Customer will not use or permit the use of the data for compiling, enhancing, verifying, supplementing, adding to or detracting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, or provided to a third party. Customer will not use or permit use of the information for generating any statistical information which is sold, rented, published, furnished or in any manner provided to a third party, or use or permit the use of the information in connection with individual credit, employment or insurance applications.
d) Customer will not use or permit use of data in violation of any federal, state, or local law, rule, or regulation or for any unlawful purpose, and will comply with the Direct Marketing Association’s Ethical Use and Fair Information Practices Guidelines. Customer agrees to comply with both federal and state laws concerning the transmission of facsimiles. Customer understands that any person violating such laws may be subject to civil and criminal penalties, which may exceed $500 for each transmission of any unsolicited facsimile. Customer acknowledges that the U.S. Federal government, certain states and self-regulatory bodies may each have restrictions on telemarketing activities, including but not limited to permitting a telephone subscriber to give public notice that such subscriber does not wish to receive sales solicitation telephone calls. Due to the varying publication dates of such notices, BB Direct disclaims any warranty, express or implied, that the names and telephone numbers of all such subscribers have been identified on or deleted from the list ordered by Customer.
e) Customer understands and warrants that it will comply with the rules relating to any Do-Not-Call Registry (“DNC Registry”) promulgated by federal, state or self-regulatory bodies, specifically including those rules that:
i) Require all sellers who initiate, or cause a telemarketer to initiate, an outbound telephone call that is not otherwise exempt to pay the appropriate fees for any DNC Registry.
ii) Require all telemarketers who initiate an outbound telephone call that is not otherwise exempt on behalf of a seller to ensure that the seller has paid all appropriate fees for an DNC Registry, and
iii) Require any company performing DNC list scrubbing on behalf of a seller to ensure that it is scrubbing the calling lists against that seller’s and only that seller’s version of the DNC list.
f) Customer certifies under the penalty of law that it will use the information gathered from any DNC Registry solely to comply with the provisions of any regulatory or self-regulatory body or otherwise to prevent telephone calls to telephone numbers on the registry.
4) Limitations of Liability: BB Direct agrees to provide information from recognized industry compilers of telephone directories and other sources. BB Direct makes no representation or warranty, express or implied, regarding the accuracy or completeness of data to be delivered, results to be obtained with the data, or that the list has been scrubbed against any regulatory or self-regulatory DNC Registry. In no event shall BB Direct be liable for loss of profits or direct or indirect, incidental or consequential damages of any nature whatsoever, any undeliverable mail pieces, disconnected phone numbers, or for any other claims regardless of the form of action. For any damages caused wholly or in part of BB Direct’s inability to fulfill its responsibilities hereunder, BB Direct’s sole liability shall be to return to Customer the amount paid for the transcribed information. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5) Approval of Customer Materials: BB Direct reserves the right to require Customer to secure BB Direct’s advance approval of and customer to whom Customer proposes to rent information to and/or require advance approval of any material which the customer proposes to mail or distribute.
6) Customer Responsibilities: Upon receipt, Customer shall inspect the data for compliance with Customer’s selection criteria. If verifiable errors are reported to BB Direct within 30 days, BB Direct shall reprocess the order without charge.
7) Customer’s End User Certification: Customer shall, whenever reasonable possible, secure its customer’s written agreement concerning notification obligations of the previous sections (i.e., secure a list rental agreement from an end user whenever reasonably possible).
8) Assignment: Neither party shall cause or permit any assignment, sublicense or transfer of this Agreement or its rights or obligations under this Agreement to any third party without the prior written consent of the other party except that either party may assign this Agreement to its parent corporation or any subsidiary or affiliate of the Assigning Party without consent.
9) Indemnity: In addition to any of the remedies provided in this Agreement, Customer agrees to defend, indemnify and hold BB Direct, directors, officers, employees and agents harmless from and against any and all claims, damages, losses, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees) sustained, suffered, paid or incurred by BB Direct, its agents, officers, directors, employees or affiliates as a result of the breach of any warranty, undertaking, representation or agreement made by Customer in this Agreement, or arising out of any violation of law by Customer or out of third party claims stemming from any act or omission by Customer in connection with this Agreement. BB Direct will give Customer prompt notice of any claim or action alleging facts, which, if true, would constitute a breach of any of Customer’s obligations under this Agreement.
10) Independent Contractors: The parties are independent contractors with respect to the rights granted under this Agreement and with respect to the exercise of said rights. Neither party has any authority to bind or commit the other in any respect whatsoever, and neither party shall hold itself out as an agent, principal, partner, associate or joint venture of the other or as having any power or authority to bind or commit the other party.
11) Arbitration: Any dispute relating to matters under this Agreement that cannot be resolved between the parties in a good faith effort, after the dispute is addressed in two meetings separated by at least five (5) business days, between executives of each party who have authority to settle such dispute, shall be subject to binding arbitration in accordance with then existing commercial arbitration rules of the American Arbitration Association (the “AAA”). The parties agree that, in the course of any such arbitration, service of any notice at their respective addresses above shall be valid and sufficient, and any arbitration hereunder shall take place in Florida. Any such arbitration shall be conducted by a single arbitrator (who shall be a practicing attorney or a retired judge) to be mutually agreed on by the parties, or, if not so agreed within thirty (30) days following receipt by the defending party from the AAA of a copy of the request for arbitration filed by the party desiring to have recourse to arbitration, selected by the AAA. The decision of the arbitrator shall be in writing and shall set forth the basis therefore. The parties shall abide by all awards rendered in arbitration proceedings, and such awards may be enforced and executed upon in any court having jurisdiction over the party against whom enforcement of such award is to be sought. The parties shall divide equally the administrative charges, arbitrator’s fee, and related expenses of arbitration, but each party shall pay its own legal fees incurred in connection with any such arbitration. Nothing herein shall prohibit either party from seeking a temporary restraining order, preliminary injunction or other provisional relief if, in its judgment, such action is necessary to specifically enforce the provision regarding Confidential Information of this Agreement.
12) Notice: All notices, requests, or other communications shall be in writing and shall be delivered by overnight mail (next business day delivery charges prepaid), certified mail, return receipt requested (1st class postage prepaid), to the address located on the first page of this Agreement, or to such other address as either party, by like notice, shall designate. Any such notice, request or other communication shall be deemed “given” to a party and be effective upon receipt by such party or refusal of delivery at such address as set forth above.
13) Waiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, with constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
14) Severability: If any provision of this Agreement shall be held invalid or unenforceable after hearing or proceedings before an independent tribunal, such provision shall be deemed deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect so long as the deleted provision does not eliminate or otherwise substantially change the economic benefits of this Agreement to either party or significantly impair the rights or increase the obligations of either party. The parties shall make good faith efforts to replace each such deleted provision by a valid and enforceable provision mutually agreeable to the parties.
15) Payment and Collections for Data Product / Services: Customer agrees to full payment for any and all products and services, within pre-established terms, regardless of whether their customer has made full payment to BB Direct customer or whether campaign, driven by said data product or service, achieves response/profit objectives. Customer agrees to pay late fees in the amount of 2% per month for any and all late invoices.
16) Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida (without giving effect to choice of law principles). In the event of the dispute arising out of this Agreement, whether in contract or tort, the parties agree to submit to the jurisdiction of the courts of the State of Florida. Venue shall be in the Federal and/or state courts located in Lee Country, Florida and Customer agrees to pay for any and all legal fees associated with bad debt collections.
17) Entire Agreement: This Agreement, including any relevant confidentiality agreements and individual orders, represents the entire understanding between the parties to this Agreement and supersedes all prior agreements and arrangements, oral or written, between the parties with respect to the subject matter of this Agreement. This Agreement may not be changed in any way unless such changes are in writing signed by the parties to this Agreement.