Client hereby orders from Cogensia, Inc, subject to the terms and conditions hereof. Consumer Data are provided on a rental basis.
Consumer Data. “Consumer Data” shall mean the contact information (such as name, address, phone number, e-mail, or other, as appropriate), and demographics or other characteristics as detailed in the terms of this agreement. Such data: (i) shall only be used by Client in connection with its own direct marketing programs for a limited use (as defined in the list order); and (ii) shall not be sold, rented or otherwise provided by Client to any third party.
Cogensia, warrants that the Consumer Data will be as current, accurate and complete as may be achieved using the source data, compilation and data processing methods normally employed by Cogensia, in the ordinary course of its business; provided, however, the Consumer Data is not warranted as being error free, and is not warranted as including all available state sourced do not call information. THE FOREGOING IS A LIMITED WARRANTY AND COGENSIA MAKES AND CLIENT RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
Client is obligated to examine the Consumer Data upon delivery and to notify Cogensia, if any questions or problems arise. Cogensia’s liability for any claim, regardless of the form of action, whether in contract, tort or negligence, for any damages resulting from or in any manner connected with the Consumer Data or the performance of Cogensia’s obligations hereunder, shall be limited to the lesser of (i) Client’s actual direct damages related thereto, or (ii) the amount of the fees paid hereunder for the Consumer Data. In no event shall Cogensia be liable for any other damages whether indirect, incidental, special or consequential including, but not limited to, lost business and lost profits, whether foreseeable or not, even if advised of the possibility of such damages.
All payments shall be due immediately after Client’s purchase of list. Client shall pay when due all sales, use and excise or similar taxes or levies related to this Agreement, exclusive, however, of taxes based on Cogensia’s income. If any such tax for which Client is responsible hereunder is paid by Cogensia, Client agrees to promptly reimburse Cogensia, therefore.
No action arising out of this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to choice of law provisions.
Limitations on Use of the Consumer Data: (A) Client Data Access. Client shall: (i) hold the Consumer Data in confidence; (ii) provide access to the Consumer Data only to its employees, contractors and agents to whom access is required and to the extent necessary for proper use hereunder; (iii) require that its employees, contractors and agents hold the Consumer Data in confidence; and (iv) require that its contractors or agents execute a written agreement, which limits use of the Consumer Data by any such contractor or agent to the performance of specified services for Client and requires that the Consumer Data be held in confidence. Client shall be as fully responsible to Cogensia, for the acts and omissions of its contractors or agents as Client is for the acts and omissions of its own employees. Client’s obligations under this Section shall survive any termination of this Agreement. Cogensia may seek injunctive or other equitable relief against the breach or threatened breach of any of the foregoing covenants in addition to any other legal remedies which may be available. (B) Individual Look-ups. Client shall not use the Consumer Data in any application involving individual look-ups of people including, without limitation, any application involving individual look-ups of people pertaining to: (i) skip tracing functions; or (ii) electronic directory assistance applications. (C) No Eligibility Decisions. Client may not use the Consumer Data in any manner to determine any consumer’s eligibility for credit, insurance or employment. (D) Do Not Call Legislation. Client hereby agrees that Client is solely responsible for compliance with “do not call” legislation. (E) Solicitations; Ad Copy. Solicitation and ad copy used by Client in connection with the Consumer Data: (i) shall not disclose the source of the recipient’s name and address; (ii) shall not contain any indication that Client possess any information about the recipient other than name and address; and (iii) must be in good taste and of the highest integrity. (F) Compliance. Client shall use the Consumer Data in compliance with the Direct Marketing Association’s Privacy Promise and all federal, state and local laws, statutes, rules and regulations.
Client House File. If any Client suppression file (the “CS File”) is provided to Cogensia, for processing hereunder, Cogensia, agrees to: (i) hold the CS file in confidence; (ii) disclose the CS File only to its employees, contractors and agents as required for use hereunder; and (iii) use the CS File only in connection with services performed hereunder. Title to any CS File shall at all times remain in Licensee.
The annual licensing coverage period is for 1 year, effective date being the effective date of this agreement of each year.
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