This agreement (“Agreement”) is between you (“Client”) and Haines and Company , Inc. (“Haines”) for Haines to grant Client certain license rights for consumer or business data (“Data”) in fixed-media directories for reference or marketing purposes. The provision and licensing of Data is available through the Haines website and includes information on how to access and use Data (the “Services”).
General and Payment Terms
- Entire Agreement. This Master Subscription Agreement (“MSA”), combined with the attached initial Subscription Order (“Order”) and any future Order signed by Client, constitutes the entire agreement (“Agreement”) between the Client and Haines & Company, Inc (“Haines”). All amendments, modifications and exceptions must be in writing and signed by Haines. In the event of any conflict between the Order and the MSA, the MSA shall control. This Agreement is subject to final approval by Haines Corporate Office.
- Term and Termination. Upon Haines’ approval, the Agreement is effective on the date Client signs page one and continues for the initial subscription term stated in the Order (“Initial Term”). Upon the expiration of the initial term or any renewal term, Client shall be automatically charged to the payment method on file for a one (1) year period unless, at seven (7) days prior to the renewal date, either party gives the other party written notice of its intent not to continue the relationship. Haines uses HubSpot & Chargify to communicate critical information to clients. Unsubscribing from either platform will result in the exclusion of pertinent information. Terms & conditions will still apply.
- Training. Training is provided via webinar or online instruction prior to checkout. Client is solely responsible for completing training and any failure to complete training does not constitute cause for cancellation of this Agreement
- Rates. Invoices will be submitted at the designed rates set forth in the Order for the Initial Term. Rates are subject to change, at Haines sole discretion, after expiration of the Initial Term.
- Client Information. Client is responsible for informing Haines of any changes in billing addresses, phone number, or contact name. Maintenance of user information is also the Client’s responsibility.
- ELECTRONIC MEANS. Each party desires to facilitate certain transactions pursuant to this Agreement by exchanging documents, records, and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Haines and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Ohio.
- AMENDMENTS. This Agreement may only be amended in writing signed by authorized representatives of both parties.
- AUTHORITY TO SIGN. Each party represents that the person signing this Agreement has all right, power, and authority to sign this Agreement or any Schedule on behalf of such party.
- Assignment. This Agreement shall be binding and inure to the benefit of the parties and their respective successors and assigns. Client may not assign any of its rights or delegate any of its duties under this Agreement without prior written consent of Haines, and, absent such consent, any attempted assignment will be null and void. Client warrants that it is not acting as an agent or representative of any undisclosed principal.
- Taxes. *Pricing does not include Taxes and other Fees. Applicable state, county or local sales or use taxes will be charged unless a valid exemption certificate is attached to this Agreement. If sales or use tax was not charged by Haines for your purchase, it is your responsibility to determine, report, and submit any sales or use taxes due to your state
- Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with Ohio law. The Parties agree that Stark County, Ohio will be the exclusive jurisdiction for any claim, dispute, or controversy that may arise between Haines and the Client.
User Obligations and Guidelines
- CONFIDENTIAL TREATMENT Under no circumstances will Client resell or otherwise disclose Data to any other person, other than employees, contractors, or agents whose duties reasonably relate to the lawful business purpose for which Client obtained the Data. Client hereby acknowledges that the Data provided includes personal information pertaining to individual consumers, and Client is required to treat such information responsibly and take reasonable precautions to maintain appropriate confidentiality and security to prevent unlawful dissemination or misuse of Data. Data and the Services shall only be used as expressly authorized in this Agreement. The confidentiality requirements of this section shall survive termination of this Agreement.
- COMPLIANCE WITH LAWS. Client agrees to comply with all laws, rules, and regulations (“Laws”) applicable to Client’s receipt and use of Data. Haines reserves the right to revise the terms, conditions, or pricing under this Agreement, or the Services (including without limitation the right to withdraw or restrict Data), including the right to impose reasonable restrictions or requirements as necessary to comply with any Law, or to address privacy or confidentiality obligations. Client agrees to strictly comply with such restrictions or requirements. Notwithstanding anything to the contrary in this Agreement, Client understands and agrees that it is solely responsible for being aware of, interpreting and complying with all Laws. Further, no information or guidance provided by Haines may be construed as legal advice. Client is responsible for obtaining its own legal advice regarding this Agreement and compliance with Laws.
- DATA AND INTELLECTUAL PROPERTY OWNERSHIP. Client acknowledges that Haines and its data suppliers have expended substantial time, effort, and funds to create and deliver the Data and Services. Accordingly, nothing contained in this Agreement shall be deemed to convey to Client or to any other party any ownership interest in or to intellectual property of Data provided in connection with the Services.
- RESPONSIBILITY FOR ACCESS CREDENTIALS AND AUDIT RIGHTS. Client will only use Data or the Services in association with a unique User ID and password (“Access Credentials”) assigned to Client by Haines. Client may not share its Access Credentials with third parties. Inappropriate use of Client’s Access Credentials is solely Client’s responsibility. Client will not use anyone else’s Access Credentials in association with Data or the Services.
- Haines will have the right to audit Client’s and any of its agents’ use of Data or the Services to assure compliance with the terms of this Agreement. Client will be responsible for assuring full cooperation with Haines in connection with such audits and will provide Haines or obtain for Haines access to such properties, records, and personnel as Haines may reasonably require.
- If Client believes its Access Credentials have been compromised, Client will immediately notify Haines, including any other relevant information to help protect the security of Data or the Services.
License, Content, and Improper Use of Data
- LICENSE. Haines hereby grants to Client a limited, non-exclusive, non transferable license for the term of this Agreement, to use the Data provided in conjunction with the Services solely for the permitted uses and in accordance with the other terms and conditions of this Agreement (“Data License”). This Data License is granted strictly and only to Client for the purposes expressly set forth in this Agreement. For purposes of this Agreement, any companies affiliated with Client shall be considered third parties with respect to use of, or access to, Data.
- DATA RESTRICTIONS The following restrictions apply to Data.
- USE. Unless otherwise agreed, and reflected in Schedule A, Client is permitted to use the Data for one of the following purposes: (i) direct mail; ii) conducting telephone solicitations; or iii) conducting telephone or direct mail surveys. Upon termination of this Agreement for any reason, all previously authorized use as described herein shall cease and Client shall promptly return or destroy allData provided under this Agreement.
- RESALE PROHIBITION. Client agrees that it will not: (i) copy or otherwise reproduce any Data except as necessary for back-up purposes; (ii) resell, or otherwise provide or disclose to any third party, any Data, in whole or in part, for any purpose whatsoever; or (iii) attempt, directly or indirectly, to discover or reverse-engineer any confidential and proprietary criteria or methodology developed or used by Haines in performing the Services.
- MANNER OF USE. Client agrees that it will use the Data provided under this Agreement for reference or marketing purposes only, in accordance with applicable Laws, and industry guidelines including but not limited to the Direct Marketing Association Guidelines (www.the-dma.org), the national Do Not Call Registry (www.donotcall.gov), Client’s own privacy policies, and in a manner that gives due consideration to matters concerning privacy and confidentiality. Client will not refer to any selection criteria or presumed knowledge about a consumer in any marketing communication. The Data may not: (i) be merged or incorporated with any other third-party file without the express, written consent of Haines; (ii) be used to enhance a file or list owned by any third party; (iii) be used to develop any file, list, enhancement, or other product; or (iv) to prepare, publish, clean, or maintain any directory. Client shall not grant access to the Data to individuals incarcerated in prisons or correctional institutions. Client shall not combine any Data with any personally identifiable consumer data collected online unless the subject consumers have been given adequate notice and choice with respect to such use, and Client has complied with and continues to comply with such notice.
- INTERNET USE. Client shall not use Data or Services in any electronic solicitation or internet application without the prior written consent of Haines.
- COPY REVIEW. Upon request, Client will provide Haines with a copy of all components of any direct marketing offer, including without limitation all mail pieces, letters, inserts, and envelopes, or any telephone script for review and approval prior to conducting any associated solicitation or survey utilizing Data. Such review shall be for the purpose of ensuring compliance with this Agreement.
- SECURITY. Client shall implement the necessary administrative, technical and physical safeguards to protect Data using the same degree of care, but in no event less than a reasonable degree of care, that Client uses to protect its own most sensitive data.
- FCRA. Client understands that Data has not been collected for credit purposes and is not intended to indicate 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 Section 1681a. Client represents and warrants that it shall not use any Data 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 the FCRA or any similar statute.
- DO NOT CALL (“DNC”) LISTS. Client acknowledges that certain laws, rules, and regulations restrict telemarketing activities, including those that permit consumers to register their phone numbers with state and federal DNC lists. At the direction of the State Attorney General Haines does not scrub Oklahoma DNC lists. Due to the varying and changing nature of such laws, rules, and regulations and the portability of phone numbers, Haines makes no warranty and disclaims all liability related to Data, DNC Lists, or any other applicable Law. Client agrees to abide by all such Laws.
- CANSPAM. Client acknowledges that certain laws, rules, and regulations restrict email activities, such as the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C § 7701) (“CANSPAM”). Due to the varying and changing nature of such laws, rules, and regulations, Haines makes no warranty and disclaims all liability related to Data, CANSPAM, or any other applicable Law. Client agrees to abide by all such Laws.
- PRIVACY AND CONSUMER PROTECTION LAWS. The Data contains information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information linked or linkable to a specific individual (“Personally Identifiable Information” or “PII”). Various state, federal, and international laws govern the privacy, security, and integrity of PII, such as the Gramm-Leach-Bliley Act (15 U.S.C. § 6801). There are also various state, federal, and international laws which regulate how and when business can engage in telemarketing, such as the Telephone Consumer Protection Act (47 U.S.C. § 227) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C § 7701). It is Client’s sole responsibility to use Data and the Services in compliance with all applicable Laws. Illegal or unauthorized use or disclosure of Data may result in civil or criminal penalties.
- INDEMNIFICATION. Client shall indemnify, defend, and hold Haines harmless from all claims, demands, causes of action, debt, or liability, including reasonable attorneys’ fees, arising from any claims relating to its use of the Data or Services in violation of this Agreement or applicable Law.
Disclaimers and Limitation of Liability
- WARRANTY AND DISCLAIMERS. Haines warrants to Client that Haines will use commercially reasonable efforts to deliver the Services and Data in a timely manner. Because the Services and Data include information provided to Haines by third parties, Haines cannot, and will not, be an insurer or guarantor of the accuracy or reliability of the Services or Data. THE WARRANTY IN THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY Haines HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES AND DATA .Haines MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY DATA, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY Haines HEREUNDER, AND Haines HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY, COMPLETENESS, OR CURRENTNESS OF DATA OR SERVICES, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Haines OR ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY.
- NOT LEGAL ADVICE. Haines does not provide legal advice or opinions regarding Data, the Services or Client’s use of Data or the Services. Client assumes total responsibility and risk for its use of Data or the Services. Data and the Services are for informational purposes only and it is Client’s sole responsibility to determine whether its use of Data or the Services violate any Law.
- EXTERNAL LINKS. The Services may contain links to external websites or other services. Unless Haines states otherwise, the existence of an external link does not mean the link will be of benefit to Client or that it is approved by Haines. Haines has no responsibility for information available from external links.
- UPDATES. Haines may make revisions, updates, and improvements to the Services at any time and without notice.
- INFECTED OR CORRUPTED MATERIALS. To the extent Client downloads files from the Haines, Client understands that Haines cannot and does not guarantee or warrant that such files will be free from infection, viruses, worms, Trojan Horses, or other malicious code that has contaminating or damaging properties.
- LIMITATION OF LIABILITY. Client acknowledges that Haines does not investigate the purpose of Client inquiries or requests for Services or Data. Client also acknowledges that the prices Haines charges for the Services and Data are based upon Haines’s expectation that the risk of any loss or injury that may be incurred by use of the Services or Data will be borne by solely by Client. Client therefore agrees that it is solely responsible for determining whether the Services and Data comply with Haines’s obligations under this Agreement. If Client reasonably determines that the Services or Data do not comply with Haines’s obligations, Client shall notify Haines in writing within ten (10) days after receipt of the Services or Data in question. Client’s failure to notify Haines shall mean that Client accepts the Services and Data as is. If Client notifies Haines within ten (10) days after receipt of the Services or Data, then, unless Haines reasonably disputes Client’s claim, Haines shall, at its option: (i) re-perform the Services in question or issue Client a credit for the amount Client paid to Haines for the nonconforming Services; or (ii) redeliver the Data. HainesS RE-PERFORMANCE OF THE SERVICES OR REDELIVERY OF THE DATA, OR THE CREDIT OF ANY FEES CLIENT HAS PAID FOR SUCH SERVICES OR DATA, SHALL CONSTITUTE CLIENT’S SOLE REMEDY AND Haines’S MAXIMUM LIABILITY UNDER THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON Haines, THEN CLIENT AGREES THAT Haines TOTAL LIABILITY FOR ANY OR ALL OF CLIENT’S LOSSES OR INJURIES FROM Haines’S ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO Haines UNDER THIS AGREEMENT FOR THE PARTICULAR SERVICES OR DATA WHICH ARE THE SUBJECT OF THE ALLEGED BREACH DURING THE SIX-MONTH PERIOD PRECEDING THE ALLEGED BREACH. CLIENT COVENANTS THAT IT WILL NOT SUE Haines FOR ANY AMOUNT GREATER THAN SUCH AMOUNT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
Version: May 2021