Terms & Conditions of Use
This Agreement (the "Agreement") is made by and between NextMark, Inc. ("Company"), and you ("Customer"). This Agreement provides the terms and conditions pursuant to which Customer may access and use (i) webpages, files, features and other content (including "Data Cards", as defined below) made available on or through this website which include the "NextMark" company logo, Company copyright notice, indicia of proprietary rights of Company or indicia of Company as a source, provider or deliverer of such content anywhere in or on such content or the file in which such content resides and (ii) any list search tools or services made available through the website and the results of any search made using such list search tools or services (including reports, "Data Cards" and other data and content) (both (i) and (ii) collectively, the "Service").
1. License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, revocable, limited license, without the right to sublicense, to access and use the Service solely in connection with Customer's internal business operations, for the purpose of researching Data Cards, and to use such other features of the Service that Company makes available to Customer from time to time. For the purposes of this Agreement, a "Datacard" is a set of information describing a direct marketing list. Notwithstanding anything to the contrary herein, any Data Card accessed through this website that includes "NextMark" or any other Company trademark or name anywhere in or on such Data Card or the file in which such Data Card resides shall be subject to these Terms & Conditions of Use.
The Company and its licensors reserve all rights not expressly granted to Customer herein, and no other rights and licenses are granted or will be deemed to be granted hereunder. Customer does not have the right to assign, transfer or sublicense to any third party any of the rights or licenses granted herein without the Company's prior written consent.
2. Restrictions. Customer represents, warrants and covenants that (a) Customer will not distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Service to any third party or reproduce or create derivative works based upon the same or any portion thereof; provided, however, that Customer shall have the right to disclose the reports and data obtained as a result of the Service with Customer's clients and prospective clients provided that such reports and data are received by Customer solely as part of a search completed specifically for such client or prospective client in connection with a proposed marketing campaign, and the use of such reports and data is limited to use in such marketing campaign (Customer is responsible for ensuring its clients' use of the reports and data complies with the terms of this Agreement), and (b) neither Customer nor any of its employees, subcontractors, other personnel or clients will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of any software associated with the Service. Customer represents, warrants, and covenants that it shall not use or permit the Service to be used (i) in violation of any applicable laws or regulations, (ii) for the propagation of worms or viruses, (iii) to violate the rights of others (including without limitation intellectual property or privacy rights), or (iv) in an abusive or inappropriate way, including without limitation in a way that is defamatory, libelous, pornographic, obscene, threatening, or constitutes hate speech. Company reserves the right to suspend access to the Service (or a portion thereof) and to terminate this Agreement without notice, both for any reason or no reason whatsoever.
Customer shall not use an automated software program, spider, web-crawler, URL checker, computer "robot" or other program to access the Service without the express written consent of Company. In addition and without limitation, Customer agrees to comply with the Robots Exclusion Standard.
Company, in its sole discretion and without any liability or notice to Customer, may at any time deny access to the Service or any portion thereof for the purpose of website maintenance or other business needs. Company does not represent or warrant that the Service will be error-free, that defects in the Service will be corrected, or that it will always be accessible. Company does not warrant or represent that the information available on or through the Service will be correct, accurate, timely, or otherwise reliable. Company may make improvements and/or changes to its features, functionality or content at any time.
3. Proprietary Rights. All right, title and interest (including without limitation intellectual property rights) in the Service shall remain in Company and/or its suppliers. Customer acknowledges the foregoing and will not take any action to jeopardize, limit, or interfere in any manner with Company's or its suppliers' ownership of such rights.
4. Disclaimer of Warranty. THE SERVICE AND MATERIALS ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SERVICE IS AUTHORIZED HEREUNDER EXCEPT PURSUANT TO THIS DISCLAIMER.
5. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF ANTICIPATED PROFITS, REVENUES, DATA OR BENEFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM (E.G., CONTRACT, TORT, WARRANTY OR OTHERWISE) OF ANY LEGAL OR EQUITABLE ACTION BROUGHT AGAINST COMPANY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY DEFAULT OF COMPANY HEREUNDER, REGARDLESS OF THE FORM OF THE ACTION. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, COMPANY'S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE GREATER OF (I) US$ 1.00 AND (II) THE MINIMUM AMOUNT PERMISSABLE UNDER APPLICABLE LAW.
6. Miscellaneous. (a) This Agreement shall be governed by the laws of the State of New Hampshire, without regard to its principles of conflicts of laws. Any litigation arising from or relating to this Agreement shall be brought, filed and prosecuted before a court of competent subject matter jurisdiction in New Hampshire or Massachusetts. The parties consent to the jurisdiction of such courts over them, and stipulate to the convenience, efficiency and fairness of proceeding in such courts. (b) Customer may not assign this Agreement or its rights and duties hereunder. Company may assign this agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (c) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. Company may modify the terms and conditions of this Agreement by informing Customer upon Customer's accessing the Service that the terms of the Agreement have been amended and giving Customer the opportunity to view the Agreement as amended. Customer's continued use of the Service after such notification shall constitute Customer's acceptance of the terms and conditions of this Agreement as amended. If Customer does not agree to the Agreement as amended, Customer shall cease to use or access the Service. (d) If any provision of this Agreement should be held illegal or unenforceable by a court, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (e) No delay or omission of Company in exercising any right under this Agreement will operate as a waiver of that or any other right. (f) The relationship between Company and Customer is that of independent contractors and neither Customer nor its agents shall have any authority to bind Company in any way. (g) Customer acknowledges that its breach of Sections 1, 2 or 3 of this Agreement will cause irreparable damage to Company. Therefore, in the event of any such breach or threatened breach, in addition to other remedies which may be available, Company shall be entitled to specific performance and injunctive relief for the enforcement thereof. In addition, Customer shall indemnify and hold harmless Company against all liability, costs and damages (including reasonable attorney's fees) arising from Customer's breach of Sections 1, 2 or 3. (h) Company will not be liable for any failure of or delay in performance directly or indirectly due in whole or in part to causes beyond the reasonable control of the Company. (i) The provisions of Sections 2-6 of this Agreement are for benefit of Company and its officers, directors, employees, agents, licensors, and suppliers. Each of these individuals or entities shall have the right to assert and enforce those provisions on their own behalf. (j) Company may terminate this Agreement and any licenses granted hereunder immediately if Customer or its clients breach any of the terms and conditions hereunder. Sections 2-6 (except for the provision of Section 2(a) permitting use of reports and data obtained as a result of the Service) shall survive expiration or termination of this Agreement. (k) Company complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on this site you may contact our Designated Agent, Joseph Pych, at the following address: NextMark, Inc., Two Buck Road, Suite 8, Hanover, NH 03755. Mr. Pych can also be reached via telephone at (603) 643-1307 x105 and via fax at (603) 643-1652.
© Copyright 2006 NextMark, Inc.