Terms of Use
Terms of Use
As set forth in the Subscription Order Form or any renewal thereof (the "Order") DayBreak Data Corporation. ("DAYBREAK") and the company identified in the Order ("Customer") agree that DAYBREAK shall make available to Customer the services identified in the Order ("Services"), subject to this Subscription Agreement ("Agreement"). Services may include, but are not limited to, business information, legal or financial data and ratings of world-wide business entities supplied by DAYBREAK or any affiliate of DAYBREAK ("Information").
1.2 Each license is for a term of twelve (12) months, beginning on the effective date of the Order, unless another term is specified in the Order. The Service (i) is available only for the number of users or benefiting audience members identified and described in the Order ("Authorized Users"); (ii) is intended only for each Authorized User's individual use; and (iii) may not be shared with other persons or entities, either internally or externally. An Authorized User is authorized by Customer to access the Services during the term of this Agreement and according to the terms of the Order, either online, or after the Information has been downloaded in accordance with the terms of this Agreement. DayBreak reserves the right to deny access to any and all users in excess of the number of Authorized Users specified in the Order.
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1. Licenses
1.1 DAYBREAK grants to Customer a non-exclusive, non-transferable license ("License") to use and display the Information specified in an Order, subject to the limitations contained in this Agreement and such Order. DAYBREAK retains all ownership rights (including copyrights and other intellectual property rights) in the Services, in any form, and Customer obtains only such rights as are explicitly granted in this Agreement and such Order.1.2 Each license is for a term of twelve (12) months, beginning on the effective date of the Order, unless another term is specified in the Order. The Service (i) is available only for the number of users or benefiting audience members identified and described in the Order ("Authorized Users"); (ii) is intended only for each Authorized User's individual use; and (iii) may not be shared with other persons or entities, either internally or externally. An Authorized User is authorized by Customer to access the Services during the term of this Agreement and according to the terms of the Order, either online, or after the Information has been downloaded in accordance with the terms of this Agreement. DayBreak reserves the right to deny access to any and all users in excess of the number of Authorized Users specified in the Order.
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2. Restrictions on Use
2.1 The Services are licensed for Customer's internal use only and subject to any restrictions set forth in the Order. Customer will not provide Information, or other Services to others, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties; or voluntarily produce Information in legal proceedings.2.2 Customer will not use Information as a factor in establishing an individual's eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment. Customer will not use any Services to engage in any unfair or deceptive practices. Customer will use the Services only in compliance with all applicable local, state, federal and international laws, rules, regulations and ordinances, including, but not limited to, laws and regulations promulgated by the Office of Foreign Assets Control, applicable trade sanctions and export restrictions, and all applicable laws and regulations regarding telemarketing, commercial e-mail (e.g. CAN-SPAM), customer solicitation (including fax and/or direct mail solicitation), data protection and privacy.
2.3 Upon expiration or termination of a License with respect to particular Information, or upon receipt of Information that is intended to supersede previously obtained Information, unless DayBreak instructs Customer otherwise, Customer will immediately delete or destroy all originals and copies of the Information, as applicable, and upon request, provide DayBreak with certification thereof.
2.4 Upon reasonable notice and during regular business hours, Customer will permit DayBreak to inspect the locations at, or computer systems on which, Information is used, stored or transmitted so that DayBreak can verify Customer's compliance with this Agreement.
2.5 DayBreak reserves the right to monitor Customer's use of the Service to ensure compliance with this Agreement and prevent fraudulent use. Such monitoring of use may include but will not be limited to determining whether or not the Service is accessed from multiple computers, as well as noting downloads beyond the limit of the total number of records as may be set forth in the applicable Order or a disproportionate number of users. DayBreak reserves the right to limit access to the Services to (i) viewing or printing using a third party web browser print function, and (ii) downloading a maximum number of records per search. In addition, Authorized Users shall be bound by any access and download limitations per search session that are internal to a Service. Per 12-month term of the License, Customer and its Authorized Users shall be limited to downloading such total number of records as may be set forth in the applicable Order or posted within a Service. All download limitations will be enforced at DayBreak’s discretion. Customer may not make available a user name and password to a party that is not an Authorized User. Systematic access or extraction of content from the Service, including, but not limited to, the use of "bots" or "spiders," is prohibited. If such monitoring indicates you are not in compliance with this Agreement or if fraudulent activity is suspected, DayBreak reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of the account.
2.6 Sharing Information With Others. The license your are provided to use DayBreak's contact list information database is only for you. You are not allowed to share this information with any other individual. You are not allowed to provide your user name, and password to any other individual. Should you discover someone has hacked into your computer and gained access to your DayBreak user name and password you agree to inform DayBreak within 24 hours of same. Should you lose your computer, have your computer stolen, and are aware your user name and password may be have compromised you agree to inform DayBreak within 24 hours of same. Should you discover a friend, coworker, family member or anyone whatsoever has gained access to your DayBreak user name and password you agree to inform DayBreak within 24 hours of same. You understand that DayBreak has spent millions of dollars to create this service and you do not have the right to share, or sell this information to anyone. Should DayBreak discover you have shared your user name and password with any individual your account is subject to immediate termination.
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3. Payment
3.1 Customer will pay DayBreak in accordance with the Order. Prices and product descriptions are those set forth in the Order. A late payment charge of the lesser of 1½% per month or the highest lawful rate may be applied to any outstanding balances until paid.3.2 Customer will pay any applicable taxes relating to this Agreement, other than taxes based on DayBreak income and franchise - related taxes.
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4. Disclaimers
4.1 Though DayBreak and its affiliates use extensive procedures to keep its database current and to promote data accuracy, Customer acknowledges that the Information will contain a degree of error.4.2 ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, DAYBREAK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DAYBREAK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. DAYBREAK WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, DAYBREAK'S CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES OR INFORMATION.
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5. Copyrights and Other Proprietary Rights
5.1 Services are proprietary to DAYBREAK and its affiliates and may include copyrighted works, trade secrets, or other materials created by DAYBREAK or its affiliates at great effort and expense. Customer will not disclose, contest the validity of DAYBREAK or its affiliates' ownership of, or impair the value of, the Services in any way. Customer will reproduce DAYBREAK or its affiliate's copyright and proprietary rights legend on all copies of the Services.5.2 Customer will not use any trademark, service mark or trade name of DAYBREAK or any of DAYBREAK’S affiliated companies or publish any press releases regarding this Agreement or any order. Customer shall not disclose the negotiated pricing or terms of this Agreement, or any order, to any third party.
5.3 DAYBREAK represents and warrants to Customer that, to DAYBREAK’S knowledge, the Information, when used in accordance with this Agreement, does not violate any existing, U.S. copyrights, patents, trademarks, or other intellectual property rights of any third party, as of the effective date of the applicable Order. The foregoing warranty does not apply to the extent Customer modifies the Information in any way or combines the Information with material from third parties.
5.4 Customer shall implement and maintain security measures with respect to the Information in Customer's possession that effectively restrict access to Information only to Authorized Users with a need to know, and protect Information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply DAYBREAK with a description of such security measures at DAYBREAK’S request. In the event of an actual or suspected breach of such security measures, Customer shall notify DAYBREAK’S within 24 hours.
5.5 Registration data and other information about Customer is subject DayBreak’s Privacy Policy.
5.6. The information available through the Service is the property of DayBreak Data Corporation, Inc., or its licensors, and is protected by copyright and other intellectual property laws. Any print-outs using or referencing content from the Service shall contain the following copyright notice: "Copyright DayBreak Data Corporation, Inc., ALL RIGHTS RESERVED," along with DayBreak’s logo that appears above. You agree not to reproduce, retransmit, photocopy, distribute, disseminate, sell, publish, broadcast, or circulate the information received through the Service to anyone without the express prior written consent of DayBreak Data Corporation, Inc. Copying and distributing DayBreak’s original copyright-protected content to third parties from the Service is forbidden. You are prohibited from: (a) using or permitting the use of the information to prepare an original database or a comparison to other databases that are sold, rented, published, or furnished in any manner to a third party; (b) using or permitting the use of the information for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, business directory, or other compilation of information that is sold, rented, published, or furnished in any manner to a third party; or (c) using or permitting the use of the information in connection with any individual credit, employment, or insurance applications.
5.7. DayBreak Data Corporation, Inc., reserves the right to monitor your use of the Service to ensure compliance with this Agreement. If it is determined you are not in compliance with this Agreement, DayBreak Data Corporation, Inc., reserves the right to take such action as is deemed necessary. Systematic access or extraction of content from the Service, including the use of "bots" or "spiders," is prohibited.
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6. Termination
6.1 In the event of material breach of paragraph 1, 2 or 6, the non-breaching party may immediately terminate, or DAYBREAK may suspend Services under, the applicable Orders without prior notice. In the event of material breach of any other part of this Agreement by Customer or DAYBREAK, the non-breaching party may terminate this Agreement or particular Orders if such breach is not cured within thirty (30) days of written notice of breach.6.2 The provisions set forth in paragraphs 2, 3, 5, 6, 7.2, 8 and 9 will survive the termination of this Agreement.
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7. Limitation of Liability
7.1 EXCEPT FOR CLAIMS ARISING OUT OF VIOLATIONS OF PARAGRAPHS 1.2, 2 OR 6, AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER, FOR CUSTOMER, WILL NOT EXCEED THE AGGREGATE AMOUNT PAYABLE BY CUSTOMER TO DAYBREAK PURSUANT TO SUCH ORDER, OR, FOR DAYBREAK, THE AGGREGATE AMOUNT PAID TO DAYBREAK BY CUSTOMER PURSUANT TO SUCH ORDER. ANY CLAIMS WILL BE BROUGHT, IN ACCORDANCE WITH THIS AGREEMENT, WITHIN 12 MONTHS OF THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIMS, OR SUCH CLAIMS WILL BE FOREVER BARRED.7.2 DAYBREAK SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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8. Choice of Law; Disputes
8.1 This Agreement is governed by and construed in accordance with the laws of the Country of Malta, without regard to choice of law provisions. Any disputes arising out of this Agreement that cannot be resolved by the parties will be brought in state or federal court located in Valletta, Country of Malta.8.2 Customer will pay all costs and expenses, including reasonable attorneys' fees, that DAYBREAK incurs in any action to enforce Customer's obligations under this Agreement.
9. Miscellaneous
9.1 All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. In no event shall any terms or conditions included on any form of Customer purchase order apply to the relationship between DAYBREAK and Customer hereunder, unless such terms are expressly agreed to by the parties in writing. Any amendments of or waivers relating to this Agreement or any Order must be in writing signed by both parties.9.2 Third parties (including affiliates of DAYBREAK) that provide information, software or services to DAYBREAK or its affiliates for use in providing the Services are intended third party beneficiaries of paragraphs 5 and 8.
9.3 This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, DAYBREAK may assign the Agreement to an affiliate or in connection with a merger or consolidation involving DAYBREAK (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of DAYBREAK assets (so long as the assignment is to the acquirer of such assets).
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REVISED January 1, 2010