Terms & Conditions for All Users of Cole Information Services

These Terms and Conditions (“Agreement”) are entered into between you (“User”) and Xpressdocs Partners, Ltd. dba Cole Information Services (“Cole”) and govern the grant of certain limited license rights from Cole to User for the use of consumer or business data in fixed-media directories for reference or marketing purposes (“Cole Data”). The provision and licensing of Cole Data is available through Cole’s websites and includes information on how to access and use Cole Data (the “Services”).

There are four parts of these Terms & Conditions:

1. User Obligations and Guidelines
2. License, Content, and Improper Use of Cole Data
3. Payment Terms
4. Disclaimers and Limitation of Liability
5. General Terms

Part 1: User Obligations and Guidelines

1. CONFIDENTIAL TREATMENT Under no circumstances will User resell or otherwise disclose Cole Data to any other person, other than employees, contractors, or agents whose duties reasonably relate to the lawful business purpose for which User obtained the Cole Data. User hereby acknowledges that the Cole Data provided includes personal information pertaining to individual consumers, and User is required to treat such information responsibly and take reasonable precautions to maintain appropriate confidentiality and security to prevent unlawful dissemination, access, or misuse of Cole Data. Both Cole Data and the Services shall only be used as expressly authorized in this Agreement. Further, all information related to Cole's fee structures, pricing strategies, and customer discounts shall be considered confidential and User is required to treat all such information as confidential. The sharing of any pricing or discount information shall be deemed a material breach of this Agreement, which will allow Cole to terminate User's license rights. The confidentiality requirements of this section shall survive termination of this Agreement.
2. COMPLIANCE WITH LAWS. User agrees to comply with all laws, rules, regulations, and orders of any governmental authority (“Laws”) applicable to User’s business and its receipt and use of Cole Data. Cole reserves the right to revise the terms, conditions, or pricing under this Agreement, or the Cole Services (including without limitation the right to withdraw or restrict Cole Data), including the right to impose reasonable restrictions or requirements as necessary to comply with any Law, or to address privacy or confidentiality obligations. User agrees to strictly comply with such restrictions or requirements. Notwithstanding anything to the contrary in this Agreement, User expressly acknowledges and agrees that it is solely responsible for being aware of, interpreting and complying with all applicable Laws. Further, no information or guidance provided by Cole may be construed as legal advice. User is responsible for obtaining its own legal advice regarding compliance with the terms of this Agreement and compliance with applicable Laws.
3. DATA AND INTELLECTUAL PROPERTY OWNERSHIP. User acknowledges that Cole and its data suppliers have expended substantial time, effort, and funds to create and deliver Cole Data and the Services. Accordingly, nothing contained in this Agreement shall be deemed to convey to User or to any other party any ownership interest in or to intellectual property of Cole Data provided in connection with the Services.
4. RESPONSIBILITY FOR ACCESS CREDENTIALS AND AUDIT RIGHTS. User will only use Cole Data and/or the Services in association with a unique User ID and password assigned to User by Cole (“Access Credentials”). User may not share its Access Credentials with third parties. User shall be solely responsible to Cole for all activities that occur under User's Access Credentials, whether or not User has knowledge of, or consented to, such use. User will not use anyone else’s Access Credentials in association with Cole Data or the Services.
1. Access Credentials provided to User allow for use of the Cole Data and/or Services by one individual person. This person may use their Access Credentials on any computer, and may print out any reports, but may not share their Access Credentials with any other person or persons. A seat license must be purchased for every person within the organization who wishes to access and use the Cole Data and/or Services. If User is using Cole Data and/or Services for a call center or equivalent use case User will notify Cole and will be charged the appropriate volume-based license. If User is found to have violated the terms of a seat license, Cole reserves the right to immediately charge User to upgrade to the appropriate license tier.
2. Cole shall have the right to audit User’s and any of its agents’ use of Cole Data and/or the Services to assure compliance with the terms of this Agreement. User will be responsible for assuring full cooperation with Cole in connection with such audits and will provide Cole or obtain for Cole access to such properties, records, and personnel as Cole may reasonably require.
3. c. If User believes its Access Credentials have been compromised, User will immediately notify Cole, including any other relevant information to help protect the security of Cole Data or the Services.

Part 2: License, Content, and Improper Use of Cole Data

5. LICENSE. Cole hereby grants to User a limited, non-exclusive, nontransferable license for the term of this Agreement, to use the Cole 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 User for the purposes expressly set forth in this Agreement. For purposes of this Agreement, any companies affiliated with User shall be considered third parties with respect to use of, or access to, Cole Data. Additionally, User expressly acknowledges and agrees that for a single seat Data License, the Cole Data is licensed for use by a single user and on one device at a time. The single seat Data License permits only a single user to access the Cole Data on more than one computer system (e.g., a desktop computer and a laptop computer or mobile device normally used by that same user at different times), provided that there is no possibility that the Cole Data will be accessed on more than one computer system simultaneously or accessed by more than one user. Any such simultaneous use requires a separate license for each computer system and/or user.
6. DATA RESTRICTIONS The following restrictions apply to Cole Data.

1. USE. Unless otherwise agreed to by Cole in writing, User is permitted to use Cole 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 User shall promptly return or destroy all Cole Data provided under this Agreement.
2. RESALE PROHIBITION. User agrees that it will not: (i) copy or otherwise reproduce any Cole Data except as necessary for back-up purposes; (ii) resell, or otherwise provide or disclose to any third party, any Cole Data, in whole or in part, for any purpose whatsoever; (iii) attempt, directly or indirectly, to discover or reverse-engineer any confidential and proprietary criteria or methodology developed or used by Cole in performing the Services; or (iv) access, store, or transmit into the Services any viruses, spam, or duplicative messages, or any material that is unlawful, abusive, obscene, or harmful.
3. MANNER OF USE. User agrees that it will use the Cole 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), User’s own privacy policies, and in a manner that gives due consideration to matters concerning privacy and confidentiality of personally identifiable information. User will not refer to any selection criteria or presumed knowledge about a consumer in any marketing communication. The Cole Data may not: (i) be merged or incorporated with any other third-party file without the express, written consent of Cole; (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. User shall not grant access to the Cole Data to individuals incarcerated in prisons or correctional institutions. User shall not combine any Cole 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 User has complied with and continues to comply with such notice.
4. INTERNET USE. User shall not use Cole Data or Services in any electronic solicitation or internet application without the prior written consent of Cole.
5. COPY REVIEW. Upon request, User will provide Cole 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 Cole Data. Such review shall be for the purpose of ensuring compliance with this Agreement.
6. SECURITY. Throughout the term of this Agreement, User shall maintain the necessary administrative, technical and physical safeguards to protect Cole Data using the same degree of care, but in no event less than a reasonable degree of care, that User uses to protect its own most sensitive data.
7. FCRA. User understands that Cole 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. User represents and warrants that it shall not use any Cole 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.
8. DO NOT CALL ("DNC") LISTS. User 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 Cole 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, Cole makes no warranty and disclaims all liability related to Cole Data, DNC Lists, or any other applicable Law, and User acknowledges and agrees that Cole shall not be liable to User or any third party based upon User's use of Cole Data that violates applicable Laws related to User's telemarketing activities. User agrees to abide by all such Laws.
9. CANSPAM. User 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) (“CAN-SPAM”). Due to the varying and changing nature of such laws, rules, and regulations, Cole makes no warranty and disclaims all liability related to Cole Data, CANSPAM, or any other applicable Law. User agrees to abide by all such Laws.
10. PRIVACY AND CONSUMER PROTECTION LAWS. Cole 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 User’s sole responsibility to use Cole Data and the Services in compliance with all applicable Laws, including but not limited to those listed herein. Illegal or unauthorized use or disclosure of Cole Data may result in civil or criminal penalties.
11. INDEMNIFICATION. User shall indemnify, defend, and hold Cole 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 Cole Data or Services in violation of this Agreement or applicable Law.

Part 3: Payment Terms

7. RENEWAL & REFUND TERMS.

By accepting these terms User agrees that Cole is authorized to charge subscription fees at the then-current rates using the payment method selected by User. Cole will charge fees at the beginning of User’s subscription and each period thereafter unless and until User cancels or this Agreement otherwise terminates.

All monthly and annual Cole subscriptions, including single, team/office or enterprise user packages renew automatically for like terms on product expiration date per subscription terms.

Cancellation of annual renewing subscriptions must be made thirty (30) days prior to the subscription anniversary (unless User is party to a Master Services Agreement in which a longer notice of termination of period is stated and for which that provision in the Master Service Agreement shall control). Annual, quarterly, and monthly pay subscriptions represent one (1) year commitments (unless otherwise noted in the product description), are nonrefundable, and may not be cancelled prior to one (1) year unless otherwise agreed to by Cole in writing.

Monthly subscriptions, where applicable, are nonrefundable and may be cancelled up to five (5) days prior to the monthly subscription date to terminate future charges.

Cancelled subscriptions will remain active until the end of the previously paid for service period.

You may choose to no auto-renew by calling Customer Service at 1-800-800-3271.

If invoiced, User will pay Cole for the Services in the amounts agreed upon and set. Cole shall have the right to revise or amend the pricing by providing thirty (30) days’ prior notice to User before such revision or amendment becomes effective. Payments shall be made to Cole within thirty (30) days of the invoice date. The prices and rates for the Services do not include shipping costs or any applicable sales or use taxes, and User will pay or reimburse Cole for such shipping costs and taxes.

User must notify Cole of any invoice disputes within ten (10) days of receipt, or else an invoice shall be deemed valid and accepted by User. If User fails to timely pay any invoice, User shall pay interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by law.

Cole offers a money back guarantee for new single seat, annual subscriptions, provided User cancels the subscription within thirty (30) days of signup. Download limits within the first 30 days subject to the download limits of the purchased subscription, not to exceed 20k.

8. SALES AND USE TAX NOTICE If sales or use tax was not charged by Cole for your purchase, it is your responsibility to determine, report, and submit any sales or use taxes due to your state.

Part 4: Disclaimers and Limitation of Liability

9. WARRANTY AND DISCLAIMERS. Cole warrants to User that Cole will use commercially reasonable efforts to deliver the Services and Cole Data in a timely manner. Because the Services and Cole Data include information provided to Cole by third parties, Cole cannot, and will not, be an insurer or guarantor of the accuracy or reliability of the Services or Cole Data. THE WARRANTY IN THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY COLE HAS GIVEN USER WITH RESPECT TO THE SERVICES AND COLE DATA. COLE MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY COLE DATA, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY COLE HEREUNDER, AND COLE 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 COLE 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 COLE OR ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY.
10. NOT LEGAL ADVICE. Cole does not provide legal advice or opinions regarding Cole Data, the Services or User’s use of Cole Data or the Services. User assumes total responsibility and risk for its use of Cole Data or the Services. Cole Data and the Services are for informational purposes only and it is User’s sole responsibility to determine whether its use of Cole Data or the Services violate any Law.
11. EXTERNAL LINKS. The Services may contain links to external websites or other services. Unless Cole states otherwise, the existence of an external link does not mean the link will be of benefit to User or that it is approved by Cole. Cole has no responsibility for information available from external links.
12. UPDATES. Cole may make revisions, updates, and improvements to the Services at any time and without notice.
13. INFECTED OR CORRUPTED MATERIALS. To the extent User downloads files from the Cole, User understands that Cole 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.
14. LIMITATION OF LIABILITY. User acknowledges that Cole does not investigate the purpose of User inquiries or requests for Services or Cole Data. User also acknowledges that the prices Cole charges for the Services and Cole Data are based upon Cole’s expectation that the risk of any loss or injury that may be incurred by use of the Services or Cole Data will be borne by solely by User. User therefore agrees that it is solely responsible for determining whether the Services and Cole Data comply with Cole’s obligations under this Agreement. If User reasonably determines that the Services or Cole Data do not comply with Cole’s obligations, User shall notify Cole in writing within ten (10) days after receipt of the Services or Cole Data in question. User’s failure to notify Cole shall mean that User accepts the Services and Cole Data as is. If User notifies Cole within ten (10) days after receipt of the Services or Cole Data, then, unless Cole reasonably disputes User’s claim, Cole shall, at its option: (i) re-perform the Services in question or issue User a credit for the amount User paid to Cole for the nonconforming Services; or (ii) redeliver the Cole Data. COLE’S RE-PERFORMANCE OF THE SERVICES OR REDELIVERY OF THE COLE DATA, OR THE CREDIT OF ANY FEES USER HAS PAID FOR SUCH SERVICES OR COLE DATA, SHALL CONSTITUTE USER’S SOLE REMEDY AND COLE’S MAXIMUM LIABILITY UNDER THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON COLE, THEN USER AGREES THAT COLE’S TOTAL LIABILITY FOR ANY OR ALL OF USER’S LOSSES OR INJURIES FROM COLE’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 USER TO COLE UNDER THIS AGREEMENT FOR THE PARTICULAR SERVICES OR COLE DATA WHICH ARE THE SUBJECT OF THE ALLEGED BREACH DURING THE SIX (6) MONTH PERIOD PRECEDING THE ALLEGED BREACH. USER COVENANTS THAT IT WILL NOT SUE COLE 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.

Part 5: General Terms

15. TERM. The term of this Agreement shall begin the day User signs up for a subscription and shall continue in effect until the termination or expiration of this Agreement or any supplementary schedules issued pursuant to this Agreement, unless earlier terminated in accordance with the terms of this Agreement. Unless User is party to a Master Services Agreement in which a longer notice of termination of period is stated (and for which that provision in the Master Service Agreement shall control), a party must provide at least thirty (30) days advanced written notice of its intent to terminate. Cole may terminate this Agreement upon ten (10) days’ notice if the provision of any service or data required by Cole becomes prohibited by law or other governmental action or if Cole is no longer able to obtain the data for the Services. In such instances, Cole may terminate this Agreement without penalty or further obligation, User will remain responsible for all fees incurred prior to the date of termination, and User’s sole recourse will be a pro rata reimbursement of any prepaid fees.
16. TERMINATION FOR CAUSE. If either party is in material breach of this Agreement, the non-breaching party may terminate this Agreement, as applicable, provided such breach is not cured within ten (10) days following written notice of such breach. Notwithstanding the foregoing, this Agreement may be terminated by Cole immediately if, in Cole’s reasonable and good-faith judgment, any Cole Data or the Services are being used or disclosed by User contrary to this Agreement. In the event that this Agreement is terminated as a result of the breach, the non-breaching party shall, in addition to its rights of termination, be entitled to pursue all other remedies against the breaching party subject to the terms of this Agreement. Termination of this Agreement shall not relieve User of its obligation to pay for any Services performed or provided by Cole under this Agreement or any Schedule.
17. REVISION OF TERMS AND CONDITIONS. Cole may revise this Agreement at any time. User should periodically read this Agreement to determine whether any updates affect User’s use of Cole Data or the Services. User’s continued use of Cole Data or the Services means User continues to agree to this Agreement and any revisions.
18. SUSPENSION OF SERVICES. In addition to terminating for cause, Cole may suspend or cancel Services if Cole believes User has failed or will fail to meet any of its obligations under of this Agreement.
19. BINDING ARBITRATION. Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association at a site in Dallas, Texas. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys’ fees and costs. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief, or from pursuing an action to collect unpaid amounts due under this Agreement, in a court of competent jurisdiction.
20. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors, and permitted assignees. This Agreement may not be assigned, transferred, or shared by User without Cole’s prior written consent.
21. EXCUSABLE DELAYS. Neither party shall be liable for any delay or failure in its performance under this Agreement, except for the payment of money, if and to the extent such delay or failure is caused by events beyond the reasonable control of the party, including, without limitation, acts of God, public enemies, or terrorists, labor disputes, equipment malfunctions, material or component shortages, supplier failures, embargoes, rationing, acts of local, state, or national governments, utility or communication failures or delays, fires, earthquakes, floods, epidemics, riots, and strikes. If a party becomes aware that such an event is likely to delay or prevent timely performance of its own obligations, the party will promptly notify the other party and use its best effort to avoid or remove such causes of nonperformance and to complete performance whenever such causes are removed.
22. CHOICE OF LAW. This Agreement is governed by and construed in accordance with the substantive laws of the State of Texas.
23. NOTICES. All notices, requests, and other communications hereunder shall be in writing and shall be deemed delivered at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three (3) days after mailing by first-class mail with postage prepaid. Notices to User shall be addressed to the addresses and primary representative provided by User upon sign up, or to such other address and/or representative as User may designate in writing to Cole from time to time. All notice to Cole shall be addressed to 1302 NE Loop 820, Fort Worth, Texas 76131 ATTN: CEO.
24. COMPLETE AGREEMENT. This Agreement sets forth the entire understanding of User and Cole with respect to the subject matter hereof and supersedes all prior letters of intent, agreements, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer employee, or representative of either party relating thereto. Neither party is relying on any statement, representation, or warranty which is not set forth in this Agreement.
25. AMENDMENTS. This Agreement may only be amended in writing signed by authorized representatives of both parties.
26. 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.
27. 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 Cole and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Texas.