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 or services provided by Homelessly, which data or services are referred to collectively as the “Data.”
(a) The term “Homelessly Property” means all programs, files, systems, documentation, information, content, graphics, page layouts, site designs, user interfaces utilized or provided by Homelessly, work product produced by Homelessly, and derivate works of any of the foregoing, including, without limitation, the website or websites made available to you by Homelessly, 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 Homelessly may develop, use or rely upon in providing the Data to you.
(b) All Homelessly Property shall be and will remain the property of Homelessly.
(c) As between you and Homelessly, Homelessly shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Homelessly Property and the Data.
2. Limited License.
Upon your execution of the Agreement and the payment of all amounts due Homelessly, 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. If no usage period is selected, the license’s term shall be for a period of one (1) year. Company shall retain all right, title and interest in and to the Production/Services and all intellectual property contained therein. Upon expiration or termination of the Agreement, you shall discontinue use of the Data and, as requested by Homelessly, either (a) return the Data to Homelessly 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 Homelessly, that the Data has been destroyed in such a manner to render the Data permanently unreadable and unrecoverable.
3. Limitations on Use.
(a) Unless specifically authorized in advance and in writing by Homelessly, 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 Homelessly 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.
4. Your Responsibilities; Use of Email Data; Review and Audit by Homelessly.
(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) Homelessly reserves the right to review your use of the Data to ensure compliance with this Agreement, but any failure of Homelessly to review such use will not constitute acceptance of such use or waive any of Homelessly’s rights hereunder or limit any of your obligations with respect to the Data. At any time upon at least 3 days’ notice, Homelessly may audit your records to determine whether you are in compliance with this Agreement and you will make available to Homelessly or its representatives all records necessary for the conduct of such an audit.
5. Disclaimer of Warranties; Limited Warranty.
THE DATA IS PROVIDED ON A STRICTLY “AS IS” BASIS. HOMELESSLY DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE DATA AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, HOMELESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE 14 DAYS FROM YOUR RECEIPT OF THE DATA TO INSPECT IT AND NOTIFY HOMELESSLY OF ANY PROBLEMS OR MISTAKES IN THE DATA AND IF YOU SO NOTIFY HOMELESSLY WITHIN THAT 14-DAY PERIOD, THE PROBLEM OR MISTAKE WILL BE CORRECTED AT NO ADDITIONAL CHARGE TO YOU.
6. Limitation of Liability.
Except as provided in the last sentence of Section 5, Homelessly will not be liable for any claim, demand, loss, liability, damage, injuries, cost or expense (including reasonable 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 Homelessly to comply with the terms of the Agreement, whether or not any such damages were foreseeable or whether Homelessly was advised of the possibility of such damages. Homelessly’s maximum liability under the last sentence of Section 5 will not exceed the amount you paid Homelessly under the Agreement within the 12 months preceding the event which gave rise to Homelessly’s liability.
7. Your Indemnification of Homelessly.
You shall indemnify, defend and hold harmless Homelessly, its stockholders, directors, officers, employees, independent contractors 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.
8. Interruption of Service.
You acknowledge that, given the technical nature of resources Homelessly requires to provide the Data to you, temporary interruptions may occur in the provision of Data and that any such interruptions shall not result in Homelessly having any liability to you or others and shall not suspend or eliminate your payment obligations to Homelessly or provide you with any refund rights for amounts previously paid to Homelessly.
9. No Assignment by You.
You may not assign your rights or obligations under the Agreement to any other person or entity without the prior written consent of Homelessly, whether by operation of law or otherwise, and any attempt to do so shall be void.
10. Additional Remedy of Termination.
In addition to all other legal rights and remedies available to Homelessly for any apparent, threatened or actual breach or violation of the Agreement by you, Homelessly has the right to terminate the Agreement and demand immediate return or destruction of the Data at any time if Homelessly believes you are not complying in full with the Agreement.
11. Governing Law; Jurisdiction.
The Agreement shall be governed by and construed under the laws of the State of Nebraska, 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 in Douglas County, Nebraska 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.
12. Payment for Non-Invoiced Products.
(a) Payment: You agree to pay Homelessly 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) Recurring Billing: Your acceptance of these terms constitutes your authorization to Homelessly to automatically charge the credit/debit card provided by you, and in the case of subscription products, to continue charging the credit/debit card at the agreed-upon intervals during the term of the subscription. You agree to provide Homelessly with complete and accurate billing and contact information and to update that information with thirty (30) days of any change to the billing information. Failure of the recurring payment process does not absolve your payment obligations.
(c) 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.
13. Entire Agreement; Amendment or Waiver.
The Agreement contains the entire understanding between you and Homelessly 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 Homelessly. 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.
14. File Management Library
Certain services, including Infousa.com, may include a file management library allowing you to store and access certain marketing creative (e.g. your logos, email creative, images) and other documents (collectively, “Marketing Content”) for your internal use. Any such Marketing Content and art will remain your property; however, you give Homelessly permission to host, store, and to allow access to your users. You are solely responsible for ensuring that you have all necessary rights and license to the Marketing Content and to use that Marketing Content in connection with the services. Homelessly is not responsible for actions you take with respect to your Marketing Content. You agree to not upload Marketing Content that, or otherwise use the services, to: (i) violate the intellectual property rights of any third party; (ii) engage in or promote illegal activity; or (iii) distribute viruses, worms, or other malware or malicious software. We reserve the right to delete or disable content alleged to violate the foregoing; however, Homelessly has no obligation to monitor or review your Marketing Content. You acknowledge that any file management library is made available for your convenience and is not intended to be used as a data backup service or in connection with disaster recovery. You are responsible for maintaining independent copies of all Marketing Content, including backup copies. Marketing Content is subject to deletion upon termination.
15. Execution; Counterparts.
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.