CLIENT REGISTRATION AGREEMENT
This Client Registration Agreement (“Agreement”) is between LocateSmarter, Inc. (“LocateSmarter”) and
(“Client”). For convenience, LocateSmarter and Client may be referred to individually as “Party” or collectively as the “Parties.”
1. Scope of agreement.
This Agreement contains the terms and conditions under which LocateSmarter will provide, and Client will obtain and use, the information and services (“LocateSmarter Services”). Unless specifically excluded from the coverage of this Agreement, and governed by a separate writing, this Agreement applies to all LocateSmarter Services provided by LocateSmarter to Client.
LocateSmarter will provide its LocateSmarter Services to Client and Client’s identified affiliates (“Client Affiliates”) during the term of this Agreement. Upon LocateSmarter’s request, Client will cause each Client Affiliate who will receive LocateSmarter Services through Client to provide LocateSmarter with a written (or electronic) certification substantially similar to the form Client Affiliate Certification provided as Exhibit A to this Agreement. Notwithstanding the separate Client Affiliate Certification, Client will remain jointly and severally liable to LocateSmarter for any failure of a Client Affiliate to meet its obligations under federal, state or local laws and/or for breach of the Client Affiliate Certification.
3. Restricted license.
LocateSmarter hereby grants to Client a non-exclusive, revocable, restricted license to use the LocateSmarter Services and any data contained therein, subject to the restrictions and limitations set forth below:
3.1 Generally. LocateSmarter hereby grants to Client a restricted use license to use the LocateSmarter Services solely for Client’s own internal business purposes. Client represents and warrants that all of Client’s use of the LocateSmarter Services shall be for only legitimate business purposes, including those specified by Client in connection with specific information request, relating to its business and as otherwise governed by this Agreement. Client shall not use the LocateSmarter Services for marketing purposes or resell or broker the LocateSmarter Services to any third-party and shall not use the LocateSmarter Services for personal (non-business) purposes. Client shall not use the LocateSmarter Services to provide data processing services to third-parties or evaluate the data of or for third-parties. Client agrees that if LocateSmarter determines or reasonably suspects that continued provision of LocateSmarter Services to Client entails a potential security risk, or that Client is engaging in marketing activities, reselling, brokering or processing or evaluating the data of or for third-parties, or using the LocateSmarter Services for personal (non-business) purposes or using the LocateSmarter Services’ information, programs, computer applications, or data, or is otherwise violating any provision of this Agreement, or any of the laws, regulations, or rules described herein, LocateSmarter may take immediate action, including, without limitation, terminate the delivery of, and the license to use, the LocateSmarter Services. Client shall not access the LocateSmarter Services from Internet Protocol addresses located outside of the United States and its territories without LocateSmarter’s prior written approval. Client may not use the LocateSmarter Services to create a competing product. Client shall comply with all laws, regulations and rules which govern the use of LocateSmarter Services and information provided therein. LocateSmarter may at any time mask or cease to provide Client access to any LocateSmarter Services or portions thereof which LocateSmarter may deem, in LocateSmarter’s sole discretion, to be sensitive or restricted information. The client acknowledges receipt of and understands the requirements of the Access Security Requirement document sent out by LocateSmarter.
3.2 GLBA Data. Some of the information contained in the LocateSmarter Services is “nonpublic personal information,” as defined in the Gramm-Leach-Bliley Act (15 U.SC § 6801, et seq.) and related state laws, (collectively the “GLBA”), and is regulated by the GLBA (“GLBA Data”). Client shall not obtain and/or use GLBA Data through LocateSmarter Services, in any manner that would violate the GLBA, or any similar state or local laws, regulations and rules. Client acknowledges and agrees that it may be required to certify its permissible use of GLBA Data falling within an exception set forth in the GLBA at the time it requests information in connection with certain LocateSmarter Services and will recertify upon request by LocateSmarter. Client certifies with respect to GLBA Data received through the LocateSmarter Services that it complies with the Interagency Standards for Safeguarding Client Information issued pursuant to the GLBA. The client acknowledges receipt of and understands the End User GLBA training sent out by LocateSmarter.
3.3 DPPA Data. Some of the information contained in the LocateSmarter Services is “personal information,” as defined in the Drivers Privacy Protection Acct (18 USC § 2721, et seq.) and related state laws, (collectively, the “DPPA”), and is regulated by the DPPA (“DPPA Data”). Client shall not obtain and/or use DPPA Data through the LocateSmarter Services in any manner that would violate the DPPA. Client acknowledges and agrees that it may be required to certify its permissible use of the DPPA Data at the time is requests information in connection with certain LocateSmarter Services and will recertify upon request by LocateSmarter.
3.4 Social Security and Driver’s License Numbers. LocateSmarter may in its sole discretion permit Client to access Qualified Access Data. If Client is authorized by LocateSmarter to receive Qualified Access Data, and Client obtains Qualified Access Data through the LocateSmarter Services, Client certifies it will not use the Qualified Access Data for any purpose other than as expressly authorized by LocateSmarter’s policies, the terms and conditions, herein, and applicable laws and regulations. In addition to the restrictions on distribution otherwise set forth in Paragraph 2 below, Client agrees that it will not permit Qualified Access Data obtained through the LocateSmarter Services to be used by an employee or contractor that is not an Authorized User with an Authorized Use. Client agrees it will certify, in writing, its uses for Qualified Access Data and recertify upon request by LocateSmarter. Client may not, to the extent permitted by the terms of this Agreement, transfer Qualified Access Data via email or ftp without LocateSmarter’s prior written consent. However, Client shall be permitted to transfer such information so long as: (i) a secured method (for example, sftp) is used; (ii) transfer is not to any third-party, and (iii) such transfer is limited to such use as permitted under this Agreement. LocateSmarter may at any time and for any or no reason cease to provide or limit the provision of Qualified Access Data to Client.
3.5 Copyrighted and Trademarked Materials. Client shall not remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the LocateSmarter Services.
3.6 National Change of Address Database. LocateSmarter obtains selected information from a licensee of the United States Postal Service’s NCOALINK database (“NCOA Database”). The information contained in the NCOA Database is regulated by the Privacy Act of 1974 and may be used only to provide mailing list correction services for lists that will be used for preparation of mailings. If Client receives all or a portion of the NCOA Database through the LocateSmarter Services, Client hereby certifies to LocateSmarter that it will not use such information for any other purposes. Prior to obtaining or using information from the NCOA Database, Client agrees to complete, execute and submit to LocateSmarter the NCOA Processing Acknowledgment Form.
3.7 Death Master File Database. Client acknowledges that many services containing data provider information also contain information from the Death Master File as issued by the Social Security Administration (“DMF”); certify pursuant to Section 203 of the Bipartisan Budget Act of 2013 and 15 C.F.R. § 1110.102 that, consistent with its applicable FCRA or GLB use of data provider information, the client’s use of deceased flags or other indicia within the data provider information is restricted to legitimate fraud prevention or business purposes in compliance with applicable laws, rules regulations, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1); and certify that the client will not take any adverse action against any consumer without further investigation to verify the information from the deceased flags or other indicia within the data provider information. Reseller must use the complete entire wording stated above or language substantially similar within the contract with the end user.
3.8 Additional Terms. Certain materials contained within the LocateSmarter Services are subject to additional obligations and restrictions. Without limitation, these services include news, business information (e.g., Dun & Bradstreet reports), and federal legislative and regulatory materials. To the extent that Client receives such materials through the LocateSmarter Services, Client agrees to comply with the General Terms and Conditions for Use of LocateSmarter (the “General Terms”). The General Terms are hereby incorporated in this Agreement by reference.
3.9 Fair Credit Reporting Act. Client certifies that when using the LocateSmarter Services, it will comply with all applicable provisions of the FCRA and all other applicable federal, state and local legislation, rules, and regulations. Without limiting the generality of the foregoing, Client certifies that (a) Client will comply with all applicable provisions of the California Credit Reporting Agencies Act and any related regulations; and (b) Client will comply with all Vermont statutes and regulations on fair credit reporting, including but not limited to, obtaining the consent of Vermont residents prior to obtaining any information on Vermont residents through these LocateSmarter Services. In addition, Client certifies it has a permissible purpose under the FCRA for obtaining a Consumer Report as set forth in this Agreement. Further:
(A) Client certifies that it will not use any of the information it receives through the LocateSmarter Services to determine, in whole or in part, an individual’s eligibility for any of the following products, services or transactions: (i) credit or insurance to be used primarily for personal, family or household purposes: (ii) employment purposes; (iii) a license or other benefit granted by a government agency; or (iv) any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including without limitation apartment rental, check-cashing, or the opening of a deposit or transaction account;
(B) by way of clarification, without limiting the foregoing, Client may use, except as otherwise prohibited or limited by this Agreement, information received through the LocateSmarter Services for the following purposes: (i) to verify or authenticate an individual’s identity; (ii) to prevent or detect fraud or other unlawful activity; (iii) to locate an individual; (iv) to review the status of a legal proceeding; (v) to collect a debt, provided that such debt collection does not constitute in whole or in part, a determination of an individual consumer’s eligibility for credit to insurance to be used primarily for personal, family or household purposes; or (vi) to determine whether to buy or sell consumer debt or a portfolio of consumer debt in a commercial secondary market transaction, provided that such determination does not constitute in whole or in part, a determination of an individual’s consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes;
(C) specifically, if Client is a third-party, Client shall not use the LocateSmarter Services: (i) to revoke consumer credit; (ii) to accelerate, set or change repayment terms; or (iii) for the purpose of determining a consumer eligibility or any repayment plan; provided, however, that Client may, consistent with the certification and limitation set for this in this section, use the LocateSmarter Services for identifying, locating, or contacting a consumer in connection with the collection of a consumer’s debt or for prioritizing collection activities; and
(D) Client shall not use any of the information it receives through the LocateSmarter Services to take any “adverse action,” as that term is defined in the FCRA.
3.10 MVR Data. If Client is permitted to access Motor Vehicle Records (“MVR Data”) from LocateSmarter, without in any way limiting Client’s obligations to comply with all state and federal laws governing use of MVR Data, the following specific restrictions apply and are subject to change: (i) Client shall not use any MVR Data provided by LocateSmarter, or portions of information contained therein, to create or update a file that Client uses to develop its own source of driving history information; (ii) as requested by LocateSmarter, Client shall complete any state forms that LocateSmarter is legally or contractually bound to obtain from Client before providing Client with MVR Data; and (iii) LocateSmarter (and certain Third-Party vendors) may conduct reasonable and periodic audits of Client’s use of MVR Data. Further, in response to any audit, Client must be able to substantiate the reason for each MVR Data order.
3.11 American Board of Medical Specialties (“ABMS”) Data. If Client is permitted to access ABMS Data from LocateSmarter, Client shall not use, nor permit others to use, ABMS Data for purposes of determining, monitoring, tracking, profiling, or evaluating in any manner the patterns or frequency of physician’s prescriptions or medications, pharmaceuticals, controlled substances, or medical devices for use by their patients.
3.12 HIPAA. Client represents and warrants that Client will not provide LocateSmarter With any Protected Health Information (as that term is defined in 45 CFR § 160.103) or with Electronic Health Records or Patient Health Records (as those terms are defined in 42 USC § 17921(5), and 42 USC § 17921(11), respectively) or with information from such records without the execution of a specific agreement between the parties, a LocateSmarter Business Associate Agreement.
3.13 Retention of Records. For uses of GLB Data, DPPA Data and MVR Data, as described in Sections 3.2, 3.3, and 3.9, Client shall maintain for a period of five (5) years a complete and accurate record (including consumer identity, purpose, and, if applicable, consumer authorization) pertaining to every access to such data.
3.14 Regulatory Requirements. Client agrees to be held responsible for compliance with all applicable federal (including, but not limited to the FCRA & GLBA) and state legislation.
4. Data security.
Client acknowledges that the information available through LocateSmarter Services may include personally information and/or sensitive personal information that is required be protected from unauthorized acquisition or disclosure under federal and/or state law and that it is Client’s obligation to keep all such accessed information confidential and secure. Accordingly, Client shall: (a) restrict access to LocateSmarter Services to those employees who have a need to know as part of their official duties; (b) ensure that none of its employees shall (i) obtain and/or use any information from the LocateSmarter Services of personal reasons, or (ii) transfer any information received from the LocateSmarter Services to any party except as permitted hereunder; (c) keep all user identification numbers, and related passwords, or other security measures (collectively, “User IDs”) confidential and prohibit the sharing of User IDs; (d) immediately deactivate the User ID for any employee who no longer has a need to know, or for terminated employees on or prior to the date of termination; (e) take all commercially reasonable measures to prevent unauthorized access to, or use of, the LocateSmarter Services or data received therefrom, whether the same is in electronic form or hard copy, by any person or entity; (f) maintain and enforce data destruction procedures to protect the security and confidentiality of all information obtained through LocateSmarter Services as it is being disposed; (g) unless otherwise required by law, purge all information received through the LocateSmarter Services and stored electronically or on hard copy by the customer within 90 days of initial receipt; (h) be capable of receiving the LocateSmarter Services where the same are provided utilizing “secure socket layer,” or such other means of secured transmission as is deemed reasonable by LocateSmarter; (i) not access and/or use the LocateSmarter Services via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by LocateSmarter; and (j) take all steps to protect their networks and computer environments, or those used to access the LocateSmarter Services, from compromise.
Client agrees that on at least a quarterly basis it will review searches performed by its User IDs to ensure that such searches were performed for a legitimate business purpose and in compliance with all terms and conditions herein. Client will implement policies and procedures to prevent unauthorized use of User IDS and the LocateSmarter Services and will immediately notify LocateSmarter, in writing to the LocateSmarter if Client suspects, has reason to believe or confirms that a User ID or the LocateSmarter Services (or data derived directly or indirectly therefrom) is or has been lost, stolen, compromised, misused or used, accessed or acquired in an unauthorized manner or by any unauthorized person, or for any purpose other than legitimate business reasons. Client shall remain solely liability for all costs associated therewith and shall further reimburse LocateSmarter for any expenses it incurs due to Client’s failure to prevent such impermissible use or access of User IDS and/or the LocateSmarter Services, or any actions required as a result thereof. Furthermore, in the event that the LocateSmarter Services provided to the Client include personally information or sensitive personal information (including, but not limited to, social security numbers, driver’s license numbers or dates of birth), the following shall apply: Client acknowledges that, upon unauthorized acquisition to or access of such information, including but not limited to that which due to use by an unauthorized person or due to unauthorized use (a “Security Event”), Client shall, in compliance with law, notify the individuals whose information was potentially accessed or acquired that a Security Event has occurred, and shall also notify any other parties (including but not limited to regulatory entities and credit reporting agencies) as may be required in LocateSmarter’s reasonable discretion. Client agrees that such notification shall not reference LocateSmarter or the product through which the data was provided, nor shall LocateSmarter be otherwise identified or referenced in connection with the Security Event, without LocateSmarter’s express written consent. Client shall be solely responsible for any other legal or regulatory obligation which may arise under applicable law in connection with such a Security Event and shall bear all costs associated with complying with legal and regulatory obligations in connection therewith. Client shall remain solely liable for claims that may arise from a Security Event, including, but not limited to, costs for litigation (including attorneys’ fees), and reimbursement sought by individuals, including but not limited to, costs for credit monitoring or allegations of loss in connection with the Security Event, and to the extent that any claims are brought against LocateSmarter, shall indemnify LocateSmarter from such claims. Client shall provide samples of all proposed materials to notify consumers and any third-parties, including regulatory entities, to LocateSmarter for review and approval prior to distribution. In the event of a Security Event, LocateSmarter may, in its sole discretion, take immediate action, including suspension or termination of Client’s account, without further obligation or liability of any kind.
Client shall implement and maintain a comprehensive information security program written in one or more readily accessible parts and that contains administrative, technical, and physical safeguards that are appropriate to the client’s size and complexity, the nature and scope of its activities, and the sensitivity of the information provided to the client by LocateSmarter; and that such safeguards shall include the elements set forth in 16 C.F.R. § 314.4 and shall be reasonably designed to (i) insure the security and confidentiality of the information provided by LocateSmarter, (ii) protect against any anticipated threats or hazards to the security or integrity of such information, and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any consumer.
LocateSmarter will use commercially reasonable efforts to deliver the LocateSmarter Services requested by Client and to compile information gathered from selected public records and other sources used in the provision of the LocateSmarter Services; provided, however, that Client accepts all information “AS IS”. Client acknowledges and agrees that LocateSmarter obtains its data from third-party sources, which may or may not be completely thorough and accurate, and that Client shall not rely on LocateSmarter for the accuracy or completeness of information supplied through the LocateSmarter Services. Without limiting the foregoing, the criminal record data that may be provided as part of the LocateSmarter Services may include records that have been expunged, sealed, or otherwise have become inaccessible to the public since the date on which the data was law updated or collected. Client understands that Client may be restricted from accessing certain LocateSmarter Services which may be otherwise available. LocateSmarter reserves the right to add materials and features, and to discontinue offering any of the materials and features that are currently a part of the LocateSmarter Services. In the event that LocateSmarter discontinues a material portion of the materials and features that Client regularly uses in the ordinary course of its business, and such materials and features are part of a flat fee subscription plan to which Client has subscribed, LocateSmarter will, at Client’s option, issue a prorated credit to Client’s account.
6. Intellectual property; confidentiality.
Client agrees that Client shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the LocateSmarter Services’ information, programs or computer applications. Client acknowledges the LocateSmarter (and/or its third-party data providers) shall retain all right, title, and interest under applicable contractual, copyright, patent, trademark, Trade Secret and related laws in and to the LocateSmarter Services and the data and information that they provide. Client shall use such materials in a manner consistent with LocateSmarter’s interests and the terms and conditions herein, and shall notify LocateSmarter of any threatened or actual infringement of LocateSmarter’s rights. Notwithstanding anything in this Agreement to the contrary, LocateSmarter or LocateSmarter’s data provider shall own Client’s search inquiry data used to access the LocateSmarter Services (in the past or future) and may use such data for any purpose consistent with applicable federal, state or local laws, rules and regulations. Client and LocateSmarter acknowledge that they each may have access to confidential information of the disclosing party (“Disclosing Party”) relating to the Disclosing Party’s business including, without limitation, technical, financial, strategies and related information, computer programs, algorithms, know-how, processes, ideas, inventions (whether written or oral), and other business information (“Confidential Information”). Confidential Information shall not include information that: (i) is or becomes (through no improper action or inaction by the Receiving Party (as defined below)) generally known to the public; (ii) was in the Receiving Party’s possession or known by its prior to receipt from the Disclosing Party; (iii) was lawfully disclosed to Receiving Party by a third-party and received in good faith and without any duty of confidentiality by the Receiving Party or third-party; or (iv) was independently developed without use of any Confidential Information.
“Trade Secret” shall be deemed to include any information which gives the Disclosing Party an advantage over competitors who do not have access to such information. Each receiving party (“Receiving Party”) agrees not to divulge any Confidential Information or information derived therefrom to any third-party and shall protect the confidentiality of the Confidential Information with the same degree of care it uses to protect the confidentiality of its own confidential information and trade secrets, but in no event less that a reasonable degree of care. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information solely to the extent required by subpoena, court order or other government authority, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such subpoena, court order or other governmental authority so as to allow the Disclosing Party to have an opportunity to obtain a protective order to prohibit or restrict such disclosure at its sole cost and expense. Confidential Information disclosed pursuant to subpoena, court order or other government authority shall otherwise remain subject to the terms applicable to Confidential Information. Each party’s obligations with respect to Confidential Information shall continue for the term of this Agreement and for a period of five (5) years thereafter provided, however, that with respect to Trade Secrets, each party’s obligations shall continue for so long as such Confidential Information continues to constitute a Trade Secret.
7. Warranties/limitation of liability.
Neither LocateSmarter, nor its subsidiaries and affiliates, nor any third-party data provider (for purposes of indemnification, warranties, and limitations on liability, LocateSmarter, its subsidiaries and affiliates, and its data providers are hereby collectively referred to as “LocateSmarter”) shall be liable to Client (or to any person claiming through Client to whom Client may have provided data from the LocateSmarter Services for any loss or injury arising out of or caused in whole or in part by LocateSmarter’s acts or omissions in procuring, compiling, collecting, interpreting, reporting, communicating, or delivering the LocateSmarter Services.
LOCATESMARTER DOES NOT GUARANTY OR WARRANT THE CORRECTNESS, COMPLETENESS, CURRENTNESS, ACCURACY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION SERVICES.
If, notwithstanding, the foregoing, liability can be imposed on LocateSmarter, then Client agrees that LocateSmarter’s aggregate liability for any and all losses or injuries arising out of any act or omission of LocateSmarter in connection with anything to be done or furnished under this Agreement, regardless of the cause of the loss or injury, and regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed One Hundred Dollars ($100.00); and Client covenants and promises that it will not sue LocateSmarter for an amount greater than such sum even if Client and/or third-parties were advised of the possibility of such damages and that it will not seek punitive damages in any suit against LocateSmarter. LocateSmarter does not make and hereby disclaims any warranty, express or implied with respect to the LocateSmarter Services. LocateSmarter does not guarantee or warrant the correctness, completeness, merchantability, or fitness for a particular purpose of the LocateSmarter Services or information provided therein. In no event shall LocateSmarter be liable for any indirect, incidental, or consequential damages, however, arising, incurred by Client from receipt or use of information delivered hereunder or the unavailability thereof. Due to the nature of public record information, the public records and commercially available data sources used in LocateSmarter Services may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or indirectly, and is generally not free from defect. LocateSmarter Services are not the source of data, nor are they a comprehensive compilation of the data. Before relying on any data, it should be independently verified.
Client hereby agrees to protect, indemnify, defend, and hold harmless LocateSmarter from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys’ fees and costs) arising from or in any way related to: (i) use of information received by Client (or any third-party receiving such information from or through Client) furnished by or through LocateSmarter; (ii) breach of any terms, conditions, representations or certifications in this Agreement; and (iii) any Security Event.
LocateSmarter hereby agrees to protect, indemnify, defend, and hold harmless Client from and against any and all costs, claims, demands, damages, losses and liabilities (including attorneys’ fees and costs) arising from or in connection with any third-party claim that the LocateSmarter Services or data contained therein, when used in accordance with this Agreement, infringe a United States Patent or United States registered copyright, subject to the following: (i) Client must promptly give written notice of any claim to LocateSmarter; (ii) Client must provide any assistance which LocateSmarter may reasonably request for the defense of the claim (with reasonable out of pocket expenses paid by LocateSmarter); and (iii) LocateSmarter has the right to control the defense or settlement of the claim; provided, however, that the Client shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
Notwithstanding the foregoing, LocateSmarter will not have any duty to indemnify, defend, or hold harmless Client with respect to any claim of infringement resulting from: (i) Client’s misuse of the LocateSmarter Services; (ii) Client’s failure to use any correction made available by LocateSmarter; (iii) Client’s use of LocateSmarter Services in combination with a product or information not provided or authorized in writing by LocateSmarter; or (iv) any information, direction, specification or materials provided by Client or any third-party.
If an injunction or order is issued restricting the use or distribution of any part of the LocateSmarter Services, or if LocateSmarter determines that any part of the LocateSmarter Services is likely to become the subject of a claim of infringement or violation of any proprietary right of any third-party, LocateSmarter may in its sole discretion and at its option: (i) procure for Client the right to continue using the LocateSmarter Services; (ii) replace or modify the LocateSmarter Services so that they become non-infringing, provided such modification or replacement does not materially alter or affect the use or operation of the LocateSmarter Services; or (iii) terminate this Agreement and refund any fees relating to the future use of the LocateSmarter Services.
The foregoing remedies constitute Client’s sole and exclusive remedies and LocateSmarter’s entire liability with respect to infringement claims or actions.
Client understands and agrees that, in order to ensure compliance with the FCRA, GLBA, DPPA, other similar state or federal laws, regulations or rules, regulatory agency requirements, this Agreement, and LocateSmarter’s obligations under its contracts with its data providers and LocateSmarter’s internal policies, LocateSmarter may conduct periodic reviews of Client’s use of the LocateSmarter Services and may, upon reasonable notice, audit Client’s records, processes and procedures related to Client’s use, storage and disposal of LocateSmarter Services and information received therefrom. Client agrees to cooperate fully with any and all audits and to respond to any such audit inquiry within ten (10) business days, unless an expedited response is required. Violations discovered in any review and/or audit by LocateSmarter will be subject to immediate action including, but not limited to, suspension or termination of the license to use the LocateSmarter Services, reactivation fees, legal action, and/or referral to federal or state regulatory agencies.
10. Survival of agreement.
The provisions hereof related to release of claims; indemnification; use and protection of information, data and LocateSmarter Services; payment for the LocateSmarter Services; audit; LocateSmarter’s use and ownership of Client’s search inquiry data; disclaimer of warranties; customer data and governing law shall survive any termination of the license to use the LocateSmarter Services.
11. Employee training.
Client shall train new employees prior to allowing them access to LocateSmarter Services concerning Client’s obligations under this Agreement, including, but not limited to, the licensing requirements and restrictions under Section 3 and the security requirements of Section 4. Client shall conduct a similar review of its obligations under this Agreement with existing employees who have access to LocateSmarter Services no less than annually. Client shall keep records of such training.
12. Attorneys’ fees.
The prevailing party in any proceeding brought pursuant to this Agreement is entitled to payment of all attorneys’ fees and costs expended by such prevailing party in association with such action, claim or lawsuit.
The charges for all LocateSmarter Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they shall be charged to Client’s account.
14. Customer changes/credit report.
Client acknowledges and understands that LocateSmarter will only allow Client access to the LocateSmarter Services if Client’s credentials can be verified in accordance with LocateSmarter’s internal credentialing procedures. Client shall notify LocateSmarter immediately of any changes to the information on Client’s Application for the LocateSmarter Services, and, if any time Client no longer meets LocateSmarter’s criteria for providing such service, LocateSmarter may terminate this Agreement. Client is required to promptly notify LocateSmarter of a change in ownership of Client’s company, any change in the name of Client’s company, and/or any change in the physical address of Client’s company.
15. Relationship of parties.
None of the parties shall, at any time, represent that it is the authorized agent or representative of the other.
16. Change in agreement.
By receipt of LocateSmarter Services, Client agrees to, and shall comply with, changes to the Restricted License granted Client in Section 3 herein, changes in pricing, and changes to other provisions of this Agreement as LocateSmarter shall make from time to time by notice to Client via email, online click-wrap amendments, facsimile, mail, invoice announcements, or other written notification. All email notifications shall be sent to the individual named in the Client’s Administrator Contact Information section, unless stated otherwise in this Agreement. LocateSmarter may, at any time, impose restrictions and/or prohibitions on the Client’s use of the LocateSmarter Services or certain data. Client understands that such restrictions or changes in access may be the result of a modification in LocateSmarter’s policy, a modification of third-party agreements, a modification of industry standards, a Security Event or a change in law or regulation, or the interpretation thereof. Upon written notification by LocateSmarter of such restrictions, Client agrees to comply with such restrictions.
Client will not name LocateSmarter or refer to its use of LocateSmarter Services in any press releases, advertisements, promotional or marketing materials, or make any other third-party disclosures regarding LocateSmarter or Client’s use of LocateSmarter Services.
19. Force majeure.
The parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the parties, Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, any irregularity in the announcing or posting of updated data files by the applicable agency, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.
20. Entire agreement.
Except as otherwise provided herein, this Agreement constitutes the final written agreement and understanding of the parties and is intended as a complete and exclusive statement of the terms of the agreement, which shall supersede all other representations, agreements, and understandings, whether oral or written, which relate to the use of the LocateSmarter Services and all matters within the scope of this Agreement. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in this Agreement shall, with respect to LocateSmarter Services and all matters within the scope of this Agreement, supersede any separate non-disclosure agreement that is or may in the future be entered into by the parties hereto. Any new, other or different terms supplied by the Client beyond the terms contained herein, including those contained in purchase orders or confirmations issued by the Client, are specifically and expressly rejected by LocateSmarter unless LocateSmarter agrees to them in a signed writing specifically including those new, other, or different terms. The terms contained herein shall supersede and govern in the event of a conflict between these terms and any new, other, or different terms in any other writing. This Agreement can be executed in counterparts and faxed or electronic signatures will be deemed originals.
The parties agree that this Agreement may amended by LocateSmarter at anytime by the posting of such amended Agreement to the LocateSmarter website together with email notice of the Amendment to Client. Client’s continued use of the LocateSmarter Services following such notice will be deemed to be the Client’s agreement the terms of the amended Agreement.
21. Third-party service providers (agents).
Client will notify LocateSmarter, in writing, if it intends to have a third-party processor (“Agent”) receive, on the Client’s behalf, the LocateSmarter Services provided by LocateSmarter. Upon such notification, and provided LocateSmarter has received satisfactory assurances concerning the Agent’s information security practices and that Client supervises the Agent in accordance with applicable law, LocateSmarter will deliver the LocateSmarter Services to Client’s Agent. The satisfactory assurances required by LocateSmarter may, in LocateSmarter’s sole discretion, include the requirement that the Agent enter into an agreement with LocateSmarter.
22. One-time use.
Unless otherwise agreed to by LocateSmarter, all LocateSmarter Services that Client receives from LocateSmarter are provided for a one-time use. Such information will not be revealed or made available, in whole or in part, to any person except employees of Client, Client Affiliates, or Client’s Agent in accordance with this Agreement.
23. Payment to LocateSmarter.
Client will pay LocateSmarter for all LocateSmarter Services rendered in the billing cycle. The prices for each LocateSmarter Service are noted in the application and applied and approved by the end user at the time of service. Unless otherwise agreed to by LocateSmarter in writing, LocateSmarter will charge the amount shown on any LocateSmarter invoice to the payment instrument provided by the Client after 3 business days following the date of the invoice, unless disputed by the Client within 3 business days. Any amount not received by LocateSmarter within 30 days from the invoice date will accrue daily interest on the unpaid amount at the rate of 1.5% per month. The amounts invoiced are exclusive of any applicable excise, sales and use taxes for which Client is solely responsible and which may appear on the LocateSmarter invoice or may be separately invoiced. Client’s non-payment may, in LocateSmarter’s sole discretion, be deemed a breach of this Agreement giving rise to LocateSmarter’s right to immediately suspend services to Client or to terminate this Agreement as described in Section 11.
24. Client representations and warranties.
Client represents and warrants that: (i) Client’s representative, whose name, title, and contact information were provided to LocateSmarter as part of the registration process is duly authorized by Client to bind Client to this Agreement; (ii) Client has the full power and authority to bind each Client Affiliate to every obligation of Client in this Agreement and Client’s agreement is effective to bind each Client Affiliate; (iii) Client will comply with all applicable federal, state, and local laws applicable to, or governing the Client’s use of the LocateSmarter Services or the activities undertaken by Client using the LocateSmarter Services; (iv) Client will not request, obtain, or use LocateSmarter Services in a manner that would make such LocateSmarter Services “consumer reports” as defined in the Fair Credit Reporting Act, 15 U.S.C. § 1681a(d); and (v) Client will not disclose information to LocateSmarter that is Protected Health Information (“PHI”) under the regulations implementing the Health Insurance Portability and Accountability Act (“HIPAA”), 45 C.F.R. § 160.103, without first entering into Business Associate Agreement required by such regulations.
25. Access to LocateSmarter services.
Client will be responsible for providing and installing all hardware and software necessary to access or receive the LocateSmarter Services provided by LocateSmarter.
26. Term and termination.
This Agreement begins on the date of Client’s registration with LocateSmarter and continues in effect until terminated. Either party may: (i) terminate this Agreement upon 30 days written (or electronic) notice to the other; or (ii) terminate this Agreement immediately upon notice if it learns that the other party is in breach of this Agreement, engaged in unlawful activities, or engaged in activities that could reasonably expose the other party to civil or criminal liability.
The Parties agree that any dispute, claim or controversy arising out of, connected with or relating to this Agreement will be resolved by binding arbitration administered and conducted under the Commercial Arbitration Rules of the American Arbitration Association and Title 9 of the United States Code. The prevailing Party in any arbitration, or judicial action to enforce an arbitration order or otherwise, will be entitled to reimbursement from the other Party for costs, filing fees, arbitration filing fees, reasonable attorney's fees, witness fees, expert fees, arbitration panel fees, and travel fees. A judgment upon the arbitration award may be entered in any court having jurisdiction. Nothing in this section, however, will prevent either Party from seeking equitable relief for the other Party's breach of its confidentiality obligations or infringement of intellectual property rights.
28.1 Enforceability. If any provision of this Agreement or any exhibit shall be held by a court of competent jurisdiction to be contrary to law, invalid or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of this Agreement shall remain in full force and effect. The headings of this Agreement are inserted for reference and convenient and shall not enter into the interpretation hereof.
28.2 Reliance on Counsel. This Agreement will not be construed against any one party on the basis that one party drafted more or less of this Agreement. Rather, each party acknowledges that it has had an opportunity to review this Agreement with its counsel and that it has participated in the formation of this Agreement.
28.3 Governing Law. The obligations and rights of the parties under the agreement will be governed by the law of the State of Iowa, with exclusive venue in Black Hawk County for any state claims and the Northern District of Iowa for any federal questions.
28.4 Forum Selection. Any arbitration under this Agreement will occur in Black Hawk County, Iowa. Any action for equitable relief under this Agreement to protect Confidential Information will be brought in a court of competent jurisdiction in Black Hawk County, Iowa.
28.5 Non-Waiver of Breach. Neither party will be deemed to have waived any of its rights under this Agreement unless such waiver is given in writing. Unless in writing, no written waiver of a breach of this Agreement will constitute a waiver of any subsequent breach of the same provision of this Agreement.
28.6 Assignment. Client may not assign its obligations under this agreement without the written consent of LocateSmarter provided, however, that Client may assign or transfer this Agreement, by operation of law or otherwise, to any person or entity that becomes Client’s successor, in connection with a change of control. LocateSmarter consents to such assignment and transfer. The successor person or entity will remain bound by and subject to this Agreement.
28.7 Notices. Notices must be in writing and must be delivered by mail, courier, email or facsimile. Notices to LocateSmarter should be sent to the address, email address, or fax number as provided on the LocateSmarter support message center. Notices to the client will be sent to the address, email address, or fax number on file at the time the notice is to be sent.
IN WITNESS WHEREOF, Client, intending to be legally bound, has caused this Agreement to be electronically executed by Client’s duly authorized representative whose name, title and contact information were provided to LocateSmarter as part of Client’s registration to receive the LocateSmarter Services.
Form of Client Affiliate Certification
Client Affiliate has reviewed the Client Registration Agreement between Client and LocateSmarter, LLC. (“Agreement”). Client Affiliate agrees to comply with the terms of the Agreement, and be bound by the Agreement, in the same manner and to the same extent as Client. Client Affiliate specifically certifies as follows:
A. Fair Credit Reporting Act (“FCRA”) certification.
Client Affiliate recognizes that the data LocateSmarter obtains and makes available to Client Affiliate as LocateSmarter Services is obtained from sources (including vendors of public record information) who make such data available based upon the understanding that the data will not be used for an “eligibility” purpose as described in the federal Fair Credit Report Act’s (“FCRA”) definition of “consumer report,” 15 U.S.C. § 1681a(d). Client Affiliate further recognizes that the LocateSmarter Services provided by LocateSmarter are not collected, in whole or in part, or provided by LocateSmarter to Client Affiliate to be used, in whole or in part, for the purpose of establishing any individual’s eligibility for a permissible purpose authorized under the FCRA, 15 U.S.C. § 1681b.
Client Affiliate, therefore, certifies to LocateSmarter that it will not obtain LocateSmarter Services from LocateSmarter, or use LocateSmarter Services obtained from LocateSmarter for purpose which would make such information a “consumer report” under the FCRA.
B. Gramm-Leach-Bliley Act (“GLBA”) Certification.
Client Affiliate certifies that any non-public personal information (“NPPI”), as defined in the federal Privacy Rule implementing the GLBA, see, 16 CFR § 313.1 et seq., provided by Client Affiliate to LocateSmarter for the purpose of obtaining LocateSmarter Services either: (i) is Client Affiliate’s own NPPI obtained in connection with an individual’s application for (or Client Affiliate’s provision of) a financial product or service to the individual to be used primarily for personal, family or household purposes; or (ii) was received by Client Affiliate from a financial institution, or service provider to a financial institution, pursuant to a Privacy Rule exception permitting the disclosure of NPPI to service providers.
C. Location Updating Purpose.
Client Affiliate certifies that the LocateSmarter Services provided by LocateSmarter will be obtained and used by Client Affiliate for the purpose of updating Client’s existing location information for specific individuals or obtaining such location information.
Client Affiliate certifies that any information disclosed to LocateSmarter to obtain the LocateSmarter Services is not Protected Health Information (“PHI”) under the regulations implementing the Health Insurance Portability and Accountability Act (“HIPAA”), 45 C.F.R. § 160.103 and that Client Affiliate will not disclose such information to LocateSmarter until the parties have first entered into a Business Associate Agreement, the terms of which are acceptable to and approved by LocateSmarter.
IN WITNESS WHEREOF, Client Affiliate, intending to be legally bound, has caused this Client Affiliate Certification to be executed by Client’s duly authorized representative whose name, title and contact information are provided as part of the Affiliate’s electronic signature.