Terms and Conditions
You (“Customer”) have requested to receive from National Data Group, Inc. certain data which may include the names and phone numbers of persons who may appear on one or more do-not-contact lists maintained by one or more States or other governmental entities. National Data Group, Inc. has agreed to supply said data in exchange for your agreement with these terms and conditions and the related purchase order/invoice.
Customer agrees and warrants that all data which Customer receives from National Data Group, Inc. or any related affiliate corporation, shall be used only in strict compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances, including but not limited to those concerning privacy, telephone solicitation, and direct marketing. Customer acknowledges that it is Customer’s sole responsibility to determine the applicability of any such laws, rules, regulations and ordinances. Customer understands the requirement that Do Not Call Registrants be purged from their calling list in accord with the procedures outlined by the FCC, FTC, and the individual states Customer does business in, in the instances where exemptions may not be applicable.
Customer further agrees to indemnify and hold harmless National Data Group, Inc. and all affiliated entities against any and all damages, fines, penalties and assessments finally awarded in any litigation, arbitration or administrative action, along with any settlement payments made in lieu thereof, including all related costs and attorney’s fees arising out of or otherwise related to the breach of these Terms and Conditions or any related agreement or purchase order/invoice, or any alleged violation of law, rule, regulation or ordinance based in whole or in part on Customer’s use of the data received from National Data Group, Inc. or any related affiliate corporation.
The material provided to Client may include trademarks, copyrights and other intellectual properties which are the property of, or are licensed to National Data Group, Inc., its parents or subsidiaries. Such materials also may contain trademarks, copyrights or other intellectual property rights of third parties, and all such rights are proprietary to their respective owners. Users are prohibited by law and these conditions from modifying, copying, distributing, transmitting, displaying, publishing, selling campaign; any use of such trademarks or trade names is strictly prohibited without the express written permission of these owners.
This agreement shall be governed by and construed in accordance with the internal laws of the State of Nebraska without regard to its conflict of law rules. Customer agrees that any dispute under these Terms and Conditions or any related agreement or purchase order/invoice shall be exclusively heard in the state and federal courts located in Douglas County, Nebraska, and further agrees that said courts are a convenient and appropriate forum.
Please pay from this invoice. For proper credit, please send the remittance form with your payment. A finance charge of 1.5%, per month shall be added to the balance due if the balance is not paid within thirty (30) days from the invoice date.
Due to the fact that our products can be copied easily, no order will be returned or accepted for credit, or otherwise, unless first approved by National Data Group, Inc. in writing.
Limitations of Liability
Customer agrees, understands, and acknowledges that National Data Group, Inc. neither assumes nor accepts any responsibility of any kind for defects, deficiencies, mistakes, ambiguities, or inaccuracies of any kind or effect with respect to the list purchased to Customer, as these are the responsibility of the list owner or compiler which are third persons and unrelated to National Data Group, Inc., Customer agrees, understands, and expressly acknowledges that while National Data Group, Inc. believes this information to be accurate, it does not warrant or guarantee any degree of accuracy of the list purchased, nor the outcome or results of any mailing or promotion or any other undertaking of the Customer and National Data Group, Inc. shall not be held liable in any manner with respect thereto or otherwise. The liability of National Data Group, Inc. and its representatives shall be limited to the amount paid by Customer hereunder. National Data Group, Inc. shall not be liable for indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business, loss of profits or investments or the like) whether based on breach of contract, breach or warranty, tort (including negligence), product liability, or otherwise, even if National Data Group, Inc. or its representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. The limitations of damages set forth herein are fundamental elements of the basis of the bargain between National Data Group, Inc. and Customer. National Data Group, Inc. would not have been able to have provided its goods and services without such limitations.
Without in any way limiting the generality of the foregoing, National Data Group, Inc. assumes no responsibility or liability for determining whether phone numbers on its lists may be registered under federal and/or state “do not call” laws or other laws governing telemarketers. All individuals and organizations covered by such laws shall be fully responsible for compliance therewith in connection with the use of lists rented hereunder. Customer hereby agrees to comply with such laws, and hereby releases NDG of any/all liability associated with violation of such laws.
Undeliverable and bounced emails are expected when purchasing an email list. Client must send to the ENTIRE database in order to be compensated for the instances when a higher bounce rate is reported. Customer agrees to send emails to the marketing list through a professional third party that allows purchased lists and provides reports differentiating between hard and soft bounces. If the list contains hard bounces, Customer agrees to return that list to NDG within 30 days of list delivery so that NDG can confirm and send replacement data. If client does not return the list as provided above, NDG will not be held responsible for verifying bounce backs and will not replace the list or provide a refund to the Customer. NDG may request details on how the email list was used, materials sent, bounce list and other circumstances surrounding the data usage. In the event hard bounces are less than 20%, NDG may in its sole discretion provide a full or partial refund, or perform other corrective measures. In the event hard bounces exceed 20%, NDG will replace the percentage difference over 20% assuming the client adheres to all other terms and conditions. In any event, NDG will only provide one set of replacement records or issue one credit for each marketing list provided to Customer.
Customer shall not: re-rent or sell the list or otherwise permit any use of the list by or for the benefit of any party other than Customer; publish, distribute or permit disclosure of the list, other than to employees and agents of the Customer for use in the Customer’s business; use or permit use of the list for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from and mailing list, geographic or trade 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; use or permit use of the list for the generation of any statistical information which is sold, rented, published, furnished or in any manner provided to a third party; use or permit use of the list to prepare any comparison to other information databases, which is sold, rented, published, furnished or in any manner provided to a third party; or use or permit use of the list in connection with individual credit, employment or insurance applications. Customer is solely responsible for your use of content provided by NDG in combination with any other images, graphics, text or other materials you incorporate into Customer’s products. Customer agrees that it will not include any text, image, design, trademark, service mark, or any copyrighted work of any third party in its products unless it has obtained the appropriate authorizations from the owners.
Customer understands that the information and data provided in the lists has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act (“FCRA”), 15 USC § 1681a. Customer agrees that it shall not use any information or data from any list as a factor in establishing any consumer’s eligibility for (i) credit or insurance used primarily for personal, family or household purposes; (ii) employment purposes; or (iii) other purposes authorized under Section 604 of the FCRA, 15 USC § 1681b or any similar statute.
NDG hereby identifies as proprietary and confidential its various databases and the data contained within such databases as well as the methods utilized by NDG in gathering, compiling and maintaining such data and preparing the lists. Customer will take reasonable precautions to assure that all confidential information disclosed to it by NDG is held in strict confidence and disclosed only to those of its respective employees whose duties reasonably require access to such information. Customer will take suitable precautions to prevent loss, compromise, or misuse of any media containing the lists, or any data contained therein, while in the possession of either party. Except as required by law, Customer agrees that the lists and any other information or data provided by NDG will be maintained in strict confidence and will not be copied, disclosed, sold or otherwise made available to any third parties. Customer shall provide for physical security of the lists obtained from NDG with the same degree of care (provided that such is at least a reasonable degree of care) that Customer uses to protect its own most sensitive data.
All lists and other goods and services provided by National Data Group, Inc. are provided ‘as is’ and National Data Group, Inc. expressly disclaims all other representations and warranties, express or implied, relation to any such goods or services, including their fitness for a particular purpose, their quality, their security, their merchantability or their non-infringement.
No Legal Advice
It is acknowledged that the Customer is not relying upon National Data Group, Inc. with respect to any legal advice in connection with the services rendered by National Data Group, Inc. pursuant to these Terms and Conditions or any related agreement or purchase order/invoice. National Data Group, Inc. hereby advises Customer, and Customer herby acknowledges, that the Federal Telephone Consumer Protection Act of 1991 (the “TCPA”), the FCC and the FTC’s Telemarketing sales rules, regulates the use of telecommunications for marketing products and services. Customer represents and warrants to National Data Group, Inc. that any and all actions taken by Customer pursuant to these Terms and Conditions or any related agreement or purchase order/invoice shall be in compliance with the provisions of the TCPA. FCC and FTC regulations and that National Data Group, Inc. shall have no liability whatsoever for any actions done or performed, or caused to be done or performed by Customer or Customers customers in connection with the Services, and Customer agrees to indemnify and hold National Data Group, Inc. harmless there from.
Indemnification
National Data Group, Inc. shall not be liable to Customer, or to anyone who may claim any right, due to National Data Group, Inc.’s relationship with Customer, for any acts or omissions in the performance of said services on the part of National Data Group, Inc. or on the part of National Data Group, Inc.’s agents, officers, directors, or employees or assigns which results from the delivery of Services made to Customer by National Data Group, Inc. and its agents, officers, directors, employees or assigns, unless said acts or omissions of National Data Group, Inc. or its agents, offices, directors, employees or assigns are due to their gross negligence or willful misconduct.; provided, that any such indemnification obligation of NDG shall be subject to other limitations set forth herein.
Unless specifically set forth and outlined herein, National Data Group, Inc., will not accept any returns or make any reimbursements, NO EXCEPTIONS. All orders, whether verbal or in writing, received from the Customer by National Data Group, Inc. required National Data Group, Inc. to create a custom order for the Customer. Therefore, the Customer is responsible for the payment of this custom order: and this financial responsibility shall not be released due to the Customer rejecting said order, refusing to accept shipment, “stop payment” on their checks, or changing the nature of the order, etc.
No modifications of these Terms and Conditions or any related agreement or purchase order/invoice may be made unless they are in writing and signed by the party to be charged. It is specifically agreed that no waiver of any breach or default by the Customer shall be deemed a waiver of any breach or default thereafter occurring.
