End User Agreement

Open Letter Marketing LLC (the “Provider”) has partnered with a third-party data provider to allow users to create mailers and pull lists of consumers and businesses directly as part of the Provider’s offerings by utilizing this platform (the “Platform”). By accessing or using this Platform, you, as an “End User” acknowledge that you have read, understood, and agree to be bound by these terms (the “Terms”) as may be amended from time to time. If you do not agree to these Terms, you must not access or use the Platform. Your continued access to or use of the Platform constitutes your acceptance of these Terms and any updates thereto.

  1. Definitions

    “Third-Party Data Provider” means the third-party data provider Provider has partnered with to provide the Platform.

    “Licensed Data” means any Record(s), Lookup Table(s), and information derived from one or more of the Platform’s proprietary database(s).

    “Record” means a unique identification number as noted by the Platform and any related attributes assigned to such identification number, if any.

    “Lookup Table” means the Platform’s decode table that enables the interpretation of the Licensed Data in raw form.

  2. Grant of License.
    1. Provider hereby grants to you, as an End User, a limited, non-sublicensable, non-transferable, non-exclusive right and license during the Term to access and use the Platform solely for your internal use, and subject to any usage restrictions set forth herein. End User shall not copy, modify, distribute, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Platform, except to the extent such restriction is prohibited by applicable law. End User shall not use or provide access to the Platform for, or on behalf of, any third parties, and End User shall remain fully responsible and liable for all its acts and omissions when using the Platform.
    2. Provider hereby grants to you, as an End User, a limited, non-sublicensable, non-transferable, non-exclusive right and license to access and use the Licensed Data during the Term, provided that if Provider’s agreement with Third-Party Data Provider terminates or expires, your license to the Licensed Data will also terminate.
  3. Prohibited Uses. End User is expressly prohibited from doing or taking any of the following actions:
    1. Referencing any selection criteria or presumed knowledge concerning the intended recipient of the solicitation or the source of such recipient’s name and address in any marketing or advertising;
    2. Co-branding or otherwise providing Licensed Data on behalf of any third party;
    3. sublicensing or reselling the Licensed Data to any third party;
    4. using or allowing third parties to use the Licensed Data for the purpose of compiling, enhancing, verifying, supplementing, adding to or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information, which is sold, rented, published, furnished or in any manner provided to a third party;
    5. using the Licensed Data in any service or product not specifically authorized in these Terms or offering it through any third party;
    6. making the Licensed Data or any portion thereof available in an on-line environment except by an appropriately secured and encrypted bulletin board service, tape-to-tape batch transmission, or remote job entry;
    7. using telephone number information in the address, envelope, body of a letter or elsewhere in a direct mail piece, telemarketing script, or other marketing program mailing;
    8. Disassembling, decompiling, reverse engineering, modifying, or otherwise altering the Licensed Data or any part thereof; using the Licensed Data, either in whole or in part, as a factor in: (a) establishing an individual’s eligibility for credit or insurance; (b) underwriting individual insurance; (c) evaluating an individual’s eligibility for employment, promotion, reassignment, or retention as an employee; (d) determining an individual’s eligibility for a license or other benefit granted by a governmental authority; or (e) soliciting survivors of deceased persons; or
    9. using or allowing third parties to use the Licensed Data for digital display advertising, including onboarding Licensed Data to any data management platform or other platform or exchange.
  4. Payments. End User agrees to pay Provider those fees, if any, identified by Provider concurrently when receiving access to the Platform. All fees paid or due under these Terms are non-cancellable and nonrefundable. End User agrees to pay any sales, value-added, withholding, or other similar taxes imposed by applicable law for the right to access the Platform, excluding taxes based on Provider’s net income, property, or employees.
  5. Intellectual Property.
    1. As between Provider and End User, Provider and its licensors retain all right, title, and interest in and to the Platform and Licensed Data, including all software, technology, content, databases, documentation, improvements, modifications, and all intellectual property rights therein. The Platform is licensed, not sold, to End User.
    2. End User acknowledges that the Platform, and certain data, content, databases, software, and related materials made available through the Platform are licensed to Provider by third parties, including Third-Party Data Provider. End User acquires no ownership rights in the Platform or any such third-party materials and shall not remove, alter, or obscure any proprietary rights notices contained therein.
    3. As between Provider and End User, End User retains all right, title, and interest in and to any data, information, content, materials, records, files, and other information submitted, uploaded, transmitted, or otherwise provided by or on behalf of End User through the Platform ("End User Content"). End User grants Provider and its service providers, licensors, and subcontractors a non-exclusive, worldwide, royalty-free license to access, use, host, copy, process, transmit, store, modify, and display End User Content solely as necessary to provide, maintain, support, secure, and improve the Platform and related services, to fulfill Provider's obligations under these Terms, and as otherwise permitted by Provider's privacy policy.
    4. End User represents and warrants that it has all rights, permissions, and authority necessary to provide the End User Content and to grant the rights set forth in these Terms. End User is solely responsible for the accuracy, quality, legality, and content of the End User Content and for its use of the Platform.
    5. Provider may generate aggregated, anonymized, or de-identified data derived from End User's use of the Platform and End User Content, provided such data does not identify End User or any individual. Provider shall own all right, title, and interest in and to such aggregated, anonymized, or de-identified data and may use it for any lawful business purpose.
  6. Data Security. End User will prevent unauthorized usage or copying of the Licensed Data. Without limiting the foregoing End User will implement a system of controls that will: (i) protect the integrity of the Licensed Data; and (ii) limit access to the Licensed Data to only authorized employees of End User with a need to access that information to enable End User’s use of the Licensed Data as authorized by these Terms.
  7. Injunctive Relief; Data Security Breach Notice Requirements. End User hereby acknowledges that any unauthorized use of the Licensed Data will cause irreparable harm and injury to Third-Party Data Provider for which there is no adequate remedy at law. End User further acknowledges that any unauthorized use of the Licensed Data may, at Provider’s sole discretion, be treated as a material breach of these Terms. In addition to all other remedies available under these Terms, at law, or in equity, End User agrees that Third-Party Data Provider shall be entitled to injunctive relief in the event End User uses the Licensed Data in violation of the limited license granted by these Terms. In the event End User is subject to a data security breach with respect to the Licensed Data, End User shall promptly take commercially reasonable steps to respond to and attempt to remedy the breach and shall notify Third-Party Data Provider in writing within twenty-four (24) hours of discovery of such breach at the notice address provided by Provider or Third-Party Data Provider. End User agrees to require that all marketing efforts, solicitations, advertising copy, and other communications derived either in whole or in part from the Licensed Data: (i) not contain any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation or the source of such recipient’s name and address; (ii) be designed such that the recipient of such communication cannot determine that state title or registration information was used as an information source; and (iii) be in good taste in accordance with generally recognized standards of high integrity. End User acknowledges that the federal government and states have enacted laws regarding direct marketing. End User further acknowledges and agrees that Third-Party Data Provider and its data suppliers have no obligation to inform End User of these laws. End User should consult with legal counsel regarding applicable laws before initiating a direct mail, fax, or telemarketing campaign. In addition, End User shall use the Licensed Data in compliance with: (i) all regulations, rules, and policies adopted by Third-Party Data Provider and communicated to End User from time to time; and (ii) the Data & Marketing Association’s Guidelines for Ethical Business Practice.
  8. Limitation of Liability; Warranties
    1. Disclaimer. The Platform shall, during the Term, materially conform to the documentation relating to the Platform, if any, provided by Provider to End User; provided that in the event the Platform does not materially conform to such documentation, End User’s remedy shall be to cease using the Platform.
    2. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THESE TERMS, THE PLATFORM AND LICENSED DATA ARE OFFERED “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. PROVIDER AND ITS THIRD-PARTY PROVIDERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE PLATFORM AT ANY TIME.
    3. Limitation of Liability. WITHOUT LIMITING THE RIGHTS OF THE PARTIES FOR EQUITABLE RELIEF AND EXCEPT FOR INDEMNIFICATION OBLIGATIONS OF THE PARTIES AND/OR BREACH OF THE CONFIDENTIALITY PROVISIONS IN THESE TERMS, IN NO EVENT: (a) WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE FEES ACTUALLY PAID TO PROVIDER BY END USER AND/OR PROPERLY DUE FROM END USER PURSUANT TO THESE TERMS DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM; AND (b) WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY TYPE OR KIND, INCLUDING LOSS OF REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE; PROVIDED THAT THIS SUBSECTION (b) SHALL NOT LIMIT END USER’S OBLIGATION TO PAY FEES OR TAXES DUE UNDER THESE TERMS. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. PROVIDER DOES NOT MAKE ANY GUARANTEES REGARDING THE DATA ATTRIBUTES OF THE LICENSED DATA.
  9. Indemnification. You, as an End User, agree to indemnify, defend and hold harmless Provider, its officers, directors, employees, agents and third parties for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of or inability to use the Platform or Licensed Data, any End User Content you generate, your violation of these Terms, your violation of any rights of a third party, or your violation of any applicable laws, rules, or regulations.
  10. Confidentiality. End User acknowledges that the Platform, Licensed Data, documentation, pricing, technical information, and other non-public information made available by or on behalf of Provider, Third-Party Data Provider, or their respective licensors constitute confidential and proprietary information. End User shall not use such information except as expressly permitted under these Terms and shall not disclose such information to any third party except to its authorized employees and service providers who have a need to know such information for End User’s authorized use of the Platform and who are bound by confidentiality obligations at least as protective as those set forth herein. End User shall protect such information using at least reasonable care and promptly notify Provider of any unauthorized use or disclosure.
  11. Term and Termination.
    1. Term. These Terms will commence on the date End User first accesses or uses the Platform and will remain in effect until terminated in accordance with this Section. If access to the Platform is provided through a subscription, the applicable subscription term will be as specified in the applicable order, registration, or subscription plan and will automatically renew for successive renewal terms of equal length unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
    2. Termination by Provider. Provider reserves the right, in its sole discretion, to suspend or terminate End User’s access to the Platform immediately if End User materially breaches these Terms, otherwise uses the Platform in a manner that poses a security risk to the Platform, or if Provider is required to do so by law or by a third-party licensor, including Third-Party Data Provider.
    3. Termination by End User. End User may discontinue use of the Platform at any time. If End User is subject to a subscription plan, termination will become effective at the end of the then-current subscription term unless otherwise provided in the applicable subscription agreement.
    4. Effect of Termination. Upon expiration or termination of these Terms:
      1. All rights granted to End User under these Terms will immediately terminate;
      2. End User shall cease all access to and use of the Platform and any data, including the Licensed Data, content, reports, or other materials obtained through the Platform;
      3. End User shall use reasonable efforts to ensure that all Licensed Data is deleted from its computers and the computers of any service provider or other third party that processed the Licensed Data for End User; and
      4. Each party shall remain responsible for any obligations accrued prior to the effective date of termination.
  12. Audit. End User acknowledges and agrees that Third-Party Data Provider may, during the term of these Terms and for a period of two (2) years following termination or expiration of these Terms, audit any and all of End User’s books, records, and systems that relate to, load, store, process, or read the Licensed Data. Audits will be: (i) performed by Third-Party Data Provider or its agent; (ii) conducted only during normal business hours; (iii) preceded by at least thirty (30) days’ written notice; and (iv) limited to once in any twelve (12) month period. End User agrees to fully cooperate and provide Third-Party Data Provider with access to the books, records, and systems, as well as knowledgeable employees of End User, as necessary to audit use of the Licensed Data. Third-Party Data Provider will be solely responsible for the costs and expenses of such audit; provided, however, End User or Provider will pay the costs and expenses of such audit and any applicable charges if the audit reveals that End User or Provider has not complied with these Terms.
  13. Miscellaneous.
    1. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Massachusetts, without regard to its conflicts of law principles.
    2. Independent Contractors. The parties are independent contractors, and nothing in these Terms shall be construed to create any partnership, joint venture, agency, fiduciary, or employment relationship between the parties.
    3. Notices. Provider may provide notices to End User by email, through the Platform, or by other reasonable means. Notices to Provider must be sent to the contact information designated by Provider for legal notices and will be deemed given upon receipt.
    4. Platform Issues. End User should promptly report any issues, errors, or concerns regarding the Platform to Provider.
    5. Entire Agreement. These Terms constitute the entire agreement between Provider and End User regarding End User’s access to and use of the Platform and supersede all prior or contemporaneous understandings, agreements, representations, and communications regarding the subject matter hereof.