These terms and conditions and any other policies posted on the Sites create a contract (the “Agreement”) between you (the “Licensee(s)”) and iProfile Limited Liability Company and/or Euro-Profile, LLC (collectively, “iProfile”) that describe your rights to access and use iProfile’s proprietary database (the “Database”) containing contact and other biographical information of certain individuals and businesses collected, compiled, and organized by iProfile, as well as any other associated services provided to you by iProfile (collectively, the “Services”). The Services and your use and access to the Sites are governed by this Agreement, including any other policies posted on the iProfile web Sites located at www.iprofile.net or the Euro-Profile web Sites located at www.euro-profile.co.uk (collectively, the “Sites”), the associated Price Quote, and the associated End User License Agreement. By accessing or using the Database or the Sites, the Licensee agrees to all terms and conditions and agrees to pay all fees contained in the Agreement, the associated Price Quote, and the associated End User License Agreement.
Agreement to Terms of Use
Your access to and use of the Database, the Sites, or the Services indicates your acknowledgement and acceptance of the terms and conditions contained in this Agreement. iProfile reserves the right, at its sole discretion, to change, modify, add or remove any provision contained in the Agreement, including any other policies posted on the Sites. Notification of any such changes or modifications will be posted on the Sites. You are responsible for regularly reviewing the Sites and all policies posted on the Sites. By continuing to use the Sites or the Services after such changes or modifications have been posted, you agree to and accept those changes and modifications.
ANY VIOLATION OF THIS AGREEMENT, ANY PRICE QUOTE, OR END USER LICENSE AGREEMENT GOVERNING YOUR USE OF THE DATABASE OR THE SITES MAY LEAD TO TERMINATION OF YOUR AND/OR YOUR COMPANY’S ACCESS TO THE SITES AND SERVICES AND/OR LEGAL ACTION.
Ownership of the Database and Intellectual Property
You acknowledge and agree that the Sites, the Database, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents and other intellectual property comprising the Database and the Sites) are the proprietary intellectual property (the “Intellectual Property”) of iProfile, whether or not copyrighted or patented. You further agree that the original and any copies of the Database are and shall at all times be the sole and exclusive property of iProfile and you agree that you will take no action in contravention of this fact. The Database contains information that is created and maintained by iProfile at great effort and expense, and the Database structure created and maintained by iProfile, under which the information is stored and retrieved, is unique and highly valuable. You do not and will not acquire any ownership in the Database or any part thereof, including information voluntarily provided by you to iProfile that is incorporated into the Database. Information from the Database that you print, save or incorporate into other materials, only as allowed by any End User License Agreement, is licensed to you and not owned by you. At the expiration or termination of your End User License Agreement, you must (i) return to iProfile all tangible copies of any information obtained from the Database in your possession, and (ii) if any electronic copies of information obtained from the Database were copied to your computer files, purge them and certify in writing to iProfile that you have done so. To the fullest extent recognized by current and future law, you agree that the Intellectual Property is and will be a protectable asset of iProfile and its providers.
Restrictions on Use
You agree not to copy, in whole or in part, the Database except as permitted herein, or knowingly assist or permit others in doing likewise. Furthermore, you shall not: (i) directly or indirectly sublicense, sell, transfer, assign, distribute, or permit access to the Database to any third party or otherwise permit any third party to use the Database; (ii) use the Database to develop any commercial database or other technology having the same primary function as the Database; (iii) modify, translate, adapt or otherwise make derivative works of the Database; (iv) alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Database; (v) attempt to unlock or bypass any initialization or security systems utilized by the Database; (vi) share, use and/or transmit any portion of the Database via the Internet in contravention of this Agreement; (vii) assign, sell, pass along or otherwise encumber the Database; or (viii) distribute the Database, or any information contained therein, to any third party. You are responsible for all uses of the Database or the Sites through your username(s) and password(s), whether the use is made by you personally or by someone else. You are responsible for protecting and securing your username(s) and password(s) from unauthorized use and disclosure. In the event that you become aware of or believe there has been any breach of the Database or the Sites, such as the theft or unauthorized use of your username(s) and password(s), you shall notify iProfile immediately. If you fail to immediately report the theft or unauthorized use of your username(s) and password(s), you shall be responsible for the payment of additional subscription fees in connection with such unauthorized use by any third party of your username(s) and password(s).
Unauthorized Access
Accessing the database, whether authorized or not, constitutes your consent to the incurrence by you of the related subscription fee. For avoidance of doubt, authorized users will be responsible for the subscription fee specified in the Price Quote attached to your respective End User License Agreement.
Limited Warranty
EXCEPT AS EXPRESSLY PROVIDED, THE DATABASE IS PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IPROFILE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE DATABASE AND ANY RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. IPROFILE DOES NOT WARRANT THAT THE DATABASE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, WILL OPERATE WITHOUT INTERRUPTION, OR OTHER PROGRAM LIMITATIONS.
EXCEPT AS MAY BE EXPRESSLY STATED, NEITHER IPROFILE NOR ANY OF ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES OR OTHER AUTHORIZED REPRESENTATIVES SHALL BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SITES, THE DATABASE, OR THE SERVICES, OR THE INFORMATION OR CONTENTS AVAILABLE THEREFROM.
THE CONTENTS OF THE DATABASE OR THE SITES COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE CONTENTS OF THE DATABASE AND THE SITES. IPROFILE MAY MAKE IMPROVEMENTS, DELETIONS, CHANGES OR OTHER MODIFICATIONS TO THE DATABASE AND THE SITES, THE CONTENTS THEREOF AT ANY TIME WITHOUT NOTICE.
Peripheral Software, Equipment and Accessories
The Licensee(s) is solely responsible for obtaining and providing its own Internet access and all necessary software, equipment, or accessories necessary for accessing or using the Database or the Sites or for utilizing the Services.
Maintenance and Support Services
iProfile shall not be required to provide any maintenance or support services for the Database. iProfile may, in its sole discretion, issue updates and/or error fixes for the Database, but iProfile is under no obligation to provide you with any such updates and/or error fixes.
Your Representations and Warranties
You represent and warrant to iProfile that: (i) you have the right, authority, and ability to conduct your business as it is currently being conducted; and (ii) your use of the Database or the Sites shall be strictly in accordance with all applicable laws, rules, regulations and ordinances.
Further, you represent, warrant and covenant that you will not, in connection with your use and access of the Database, the Sites, or the Services:
(i) restrict or inhibit any other licensed user from using and enjoying the Sites or Database;
(ii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law;
(iii) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right;
In addition you agree that you will not:
(i) attempt to gain unauthorized access to the Services or the iProfile accounts of others;
(ii) use the Sites, Database or Services, or any part thereof, to harass or harm any other User or any other person in any way;
(iii) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(iv) interfere with or disrupt the Sites or servers of networks connected to the Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the Sites;
(v) disparage, defame, libel or make untrue, malicious, offensive statements about iProfile or the Sites, or
(vi) use the Sites or Services to violate any applicable, local, state, national or international law or regulation.
You further agree, without limiting the generality of the foregoing, that when sending any e-mail messages using contact information obtained from the Database:
(i) You will provide an “opt-out” notice in allowing the recipient to contact you at a functioning return email address and decline the receipt of any further future messages. In addition, you represent and warrant that your e-mail messages utilizing the Services will include a valid subject line, clear and conspicuous notice that the message is a solicitation, and your legitimate physical address. All such e-mails will comply with generally accepted standards for commercial solicitations and all applicable international (including EU Directive 2002/58), federal (including the CAN-SPAM Act of 2003) and state laws and regulations.
(ii) You will update your distribution lists on a periodic basis, but not less than once per month. This requirement is in no way limiting on your obligation to remove individuals immediately from your distribution lists if they have requested removal. You will target your mass communications as much as possible to those individuals and entities that you genuinely believe will have a professional interest in the subject of your communication, utilizing the search capabilities provided by iProfile.
(iii) If you are a user that sends e-mails to individuals in the European Union or the European Economic Area, you will comply with EU Directive 2002/58, as implemented by EU and EEA Member States, to the extent applicable. If required by applicable law, you agree not to send e-mails to European individuals unless you have an established business relationship (EBR) with such individuals or you have obtained their prior consent.
(iv) You will comply with FCC telemarketing rules, which place significant restrictions on Fax advertising by severely limiting the ability of companies to send faxes to existing customers. Businesses may send faxes containing advertisements only with the recipient’s prior, written permission, which includes the recipient’s signature and fax number. The recipient’s statement must include a clear invitation to send advertising faxes. This ban on unsolicited fax advertising applies to faxes sent to any recipient who could be a consumer or a business. A fax includes an “advertisement” if it includes “any material advertising the commercial availability or quality of any property, goods or services.” The FCC clarifies that there is no “established business relationship” exception to the ban on unsolicited faxes. Accordingly, even faxes to a company’s existing customers will require their prior, express permission if the fax includes advertising content.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD IPROFILE’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, PARTNERS, SUCCESSORS AND ASSIGNS, HARMLESS FOR ANY VIOLATION BY YOU OF THE ABOVE RULES AND REGULATIONS REGARDING E-MAIL AND FAX COMMUNICATIONS.
Limitation of Liability
iProfile’s cumulative liability to Licensee or any other party for any loss or damage resulting from any claim, demand or action arising out of or relating to this Agreement shall not exceed the Subscription Fee paid by you for use of the Database. In no event shall iProfile be liable for any lost profits, losses due to business interruption or other damages, including direct, indirect, incidental, consequential, special or exemplary damages, arising out of this Agreement or the use of the Database licensed hereunder as allowed by law.
IPROFILE MAY CANCEL OR SUSPEND YOUR SUBSCRIPTION AT ANY TIME WITHOUT CAUSE AND/OR WITHOUT NOTICE. CANCELLATION OF SERVICE WILL NOT ALTER ANY OBLIGATION TO PAY. IF YOUR SUBSCRIPTION IS CANCELED WITHOUT CAUSE, IPROFILE MAY REFUND YOUR SUBSCRIPTION FEE ON A PRO-RATA BASIS. ANY CLAIM RELATED TO THIS LICENSE OR THE SYSTEM MUST BE BROUGHT TO THE ATTENTION OF IPROFILE WITHIN THREE MONTHS. THE THREE-MONTH PERIOD APPLIES TO THE DATE IN WHICH THE CLAIM FIRST COULD BE FILED. CLAIMS FILED OUTSIDE OF THE THREE-MONTH PERIOD ARE BARRED.
Third Party Payment Processors
We do not take responsibility for breaches in privacy made by third-party payment processors.
Force Majeure
Neither party shall be responsible for any cessation or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, fire, accident, labor difficulty, strike, riot, civil commotion, acts of God, equipment or system failure or changes in any federal, state or local laws, rules, regulations or ordinances.
Independent Contractors
The relationship of iProfile to you shall be solely that of an independent contractor. The parties acknowledge and agree that neither iProfile nor you are an agent, partner, or joint venturer of the other. Neither iProfile nor you shall have or hold itself out as having the right or authority to assume or create any obligation or responsibility, whether expressed or implied, on behalf of or in the name of the other, except with the express written consent of the other.
Governing Law
This Agreement shall be construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule.
Breach
In the event that you shall at any time be in breach of any of your representations and warranties or any material obligation contained herein, including without limitation the failure to pay any installment of the Subscription Fee when due, iProfile shall be entitled to receive from you, upon demand, the entire amount of costs, claims, demands, damages, losses or liabilities, including without limitation reasonable attorneys’ fees and costs, suffered by iProfile and arising from, or allegedly arising from, your breach of this Agreement. For every contact (defined as two or more elements of a profile, including, without limitation, name, title, email, or phone number) contained in the Database that you directly or indirectly sublicense, sell, transfer, assign, distribute, or permit access to the Database to any third party or otherwise permit any third party to use, in contravention of this Agreement, you shall be liable for liquidated damages of $1,000.
Waiver
None of the remedies provided for in this Agreement is intended to be exclusive, and each party shall have available all other remedies now or hereinafter existing at law or in equity or by statute or otherwise. The delay or failure of either party hereto to enforce any of its rights hereunder shall not act as a waiver of any such right, nor shall the waiver of any breach hereunder be deemed a waiver of any subsequent breach of that or any other provision.
Conflict
Any conflict between the terms and conditions contained herein and the terms and conditions contained in your respective End User License Agreement shall be governed by the End User License Agreement.