Data License Agreement
All data sold by Smarketing Lab, whoiswhere and is governed by the following Data Licence Agreement:
- THE PARTIES
The parties to this license are Smarketing Lab and the Customer, Customer defined as the person, company or organization that orders and pays the fee for access to Smarketing Lab and associated companies database. The “Authorized User” is an employee, student, registered patron, or other person affiliated with, or permitted to use the facilities of, the Customer, who: (i) is covered by the applicable user fee paid by the Customer, (ii) is authorised by the Customer to access the Databases, and (iii) is generally eligible to use other electronic databases of the Customer. Paragraphs 1 through 5 of this license aappliesboth to the Customer and any Authorized User, except where a particular term expressly refers only to one or the other. Paragraphs 6 through 11 of this license apply to
the Customer only.
2.0 USER LICENSE
- Smarketing Lab grants to the Customer a non-exclusive, non-transferable license to access the Databases by means of Excel or other software that the Customer has access to.
- The Database, its trademark and the process of information gathering, verification and maintenance are the property of Smarketing Lab and are protected by copyright laws.
- No title is transferred by this license or by the payment of any fee.
- The Customer may offer access to the Databases only to Authorized Users whose identity can be reasonably confirmed using Customer’s existing authentication
- Any rights not expressly granted in this license are reserved to Smarketing Lab.
2.1 WHAT USER MAY DO:
- make searches of the Database, sort data, use it with existing CRM or DM software and create data extracts for use as a basis for reasonable and legal direct marketing activities
- make a limited number of hard copies of any search output that does not contain a significant segment of a database, which copies may be used only internally but may not be sold
- make one copy of any search output in electronic form, i.e., diskette, hard disk, or tape; to be used for editing or temporary storage only
2.2 WHAT USER MAY NOT DO:
- sell, distribute or commercially exploit the Database or associated material from Smarketing Lab
- make the Database available on a network or to simultaneous users or through remote access technology, except in accordance with Paragraph 2.4
- transfer, assign, rent, sell or sublicense this license
- use data from this Database in any other form, but for the purposes of sales, marketing or promotion of your business in an ethical and professional manner.
- use any Database in any way unless you have agreed to be bound by this license.
2.3 USAGE ON STANDALONE COMPUTERS
If the Customer has paid the fee for usage on a standalone computer, the Databases and the Software may be used only by one Authorized User at a time on a single standalone computer through which the Database cannot be accessed by network users. An additional network fee must be paid for every single user on a network unless agreed otherwise in writing.
2.4 WHICH SIMULTANEOUS USE IS PERMITTED
- Payment of the appropriate fee for unlimited use gives the Customer the right to provide access to the Database to all Authorized Users wherever located, or
- Payment of the appropriate fee for access by a specific number of simultaneous users gives the Customer the right to provide access to that number of simultaneous Authorized Users only, wherever located; provided in all cases that the Customer has paid the applicable remote access fees.
- LIMITATION OF WARRANTIES AND LIABILITY
- Smarketing Lab warrants to the Customer that any media containing a Database provided hereunder is free from defects in materials and workmanship under normal use. Smarketing Lab will replace defective media free of charge upon their return to Smarketing Lab.
- Smarketing Lab warrants to the Customer that every effort has been made to verify information provided in a Database in person. All information is provided in a good faith with respect to the individual businesses listed in the Database, according to their explicit requests.
- Smarketing Lab warrants that information provided in a Database has been gathered structured and formatted by Smarketing Lab and does not exist exactly in this form elsewhere to the extent of knowledge by Smarketing Lab. With that, Smarketing Lab has the right to enter into this agreement and to deliver “as is” the Smarketing Lab and associated companies ‘ database.
- The warranties expressed in 3 a), b) and c) above represent the entire liability of Smarketing Lab with respect to this license, and are in lieu of any and all other warranties, written or oral, express or implied.
- The presence or the absence from the database of any reference to information or data does not imply the specific existence or the non-existence thereof, nor does Smarketing Lab claim absence of errors, which may be a reflection of the level of information disclosed to and received by Smarketing Lab from individuals, businesses or organisations.
- In view of the above, all liability is disclaimed for the absolute accuracy, completeness or functioning of the database.
- Smarketing Lab assumes no responsibility for the use of the database by the customer or any authorised user. Smarketing Lab shall not be liable for loss or profits, loss of use, or incidental, consequential, or exemplary damages as a result of such use, even if expressly made aware of the possibility thereof.
Specifically Smarketing Lab is not responsible for any misuse of the data under the Unsolicited Electronic Messages Act 2007. Any emails provided are not guaranteed to hold any form of consent and it is up to the user to verify express or deemed consent from the businesses.
- In no event may any action be brought against Smarketing Lab arising out if this agreement more than one year after the claim or cause of action arises, determined without regard to when the customer shall have learned of the alleged defect, injury or loss.
- Smarketing Lab total liability for damages under this agreement shall not exceed the annual license fee paid or any other fees paid for by Customer (whether such liability arises from breach of this contract or otherwise)
- The provisions stated in paragraph 3 of this licence agreement will survive any termination of this license.
- APPLICABLE LAW
This Agreement governed by the laws of New Zealand.
- ENTIRE UNDERSTANDING
This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, provided; however, that a Customer’s manually signed license agreement, if applicable, will supersede any conflicting terms in this Agreement. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any prior Customer purchase order will be subject to the terms of this Agreement and that any acceptance of a purchase order by Smarketing Lab will be for acknowledgment purposes only and none of the terms set forth in the purchase order will be binding upon Smarketing Lab. Any representation, promise, warranty, covenant or undertaking not expressly set forth in this license shall not be deemed a part of the Agreement or otherwise legally effective.
- SECURITY & AUDIT
The Customer will take reasonable action to restrict and control all use of the Software and the Databases, to enforce the restrictions contained in Paragraph 2, and to permit access only to Authorized Users. The Customer will make reasonable efforts to ensure compliance by Authorized Users with this license. The Customer grants Smarketing Lab the right to audit, during regular business hours, use of the Databases to ensure compliance with this Agreement, including without limitation, the number of simultaneous users accessing those Databases for which access is limited to a
specific number of simultaneous users.
This license applies to any use of a Database during authorized period, during the period for which a fee has been paid, and at any time when updates paid for are being received. When the Customer accepts an updated version of this Agreement, the updated version will replace this version. Smarketing Lab reserves the right to cease offering the Customer the opportunity to renew a subscription.
- UPDATES. UPDATED OR EXPIRED COPIES
The Customer will receive, or be given access to, periodic updates to the Database for which the appropriate fee has been paid. In the case of delivery via CD-ROM, upon receipt of an updated CD-ROM disc, or upon termination of this Agreement, the Customer is required to discontinue use of the outdated disc or, in the case of termination, the final disc, and promptly is to destroy such disc and erase all electronic storage. In the case of access via Internet, upon termination, the Customer shall promptly erase all electronic storage. If the Customer fails to comply with any of its responsibilities under this license, the Customer may be denied future updates, without precluding Smarketing Lab from seeking any other remedies.
Excluding claims arising out of or relating to the violation by Smarketing Lab or the Information Partner of any third party copyright, trade secrets, or trademark, the Customer, to the extent permitted by applicable law, agrees to indemnify Smarketing Lab and the Information Partner and hold them harmless from and against any and all claims of the Customer or other third parties arising out of or related to the use of the licensed materials, regardless of whether such claims were foreseeable by Smarketing Lab. The provisions of this Paragraph 10 will survive any termination.
If the Customer breaches any term of this Agreement, Smarketing Lab may, in addition to its other legal rights and remedies, terminate the license granted hereunder with 7 days notice to Customer, unless such breach is cured within such notice period. Upon any termination for breach, the Customer will, unless otherwise agreed to in writing by Smarketing Lab, forthwith return to Smarketing Lab the Database and any and all documentation pertaining thereto, and all copies thereof, and will erase all electronic storage of copies of the Software and search outputs or other electronic storage. Any termination, whether or not for breach, will not affect any obligation or liability of a party arising prior to termination.
- FORCE MAJEURE
Smarketing Lab will not be responsible for any delay or failure in performance, including Customer software failure, resulting from any cause beyond their control.
- CHANGES TO THIS AGREEMENT
Smarketing Lab shall notify Customer of any changes in the terms of the agreement at least 30 days prior to the notice period for renewal, or 60 days prior to the expiration of the then current term if the notice period is 30 days, or 90 days prior to the expiration of the then current term if the notice period is 60 days. If a term or condition of this license is invalid or unenforceable, the remaining terms and conditions will remain in full force and effect.