These general terms and conditions are part of the contract to which they are attached (the “Agreement”) and apply to your use of any marketing or email data or services provided by Cashyew Holding DBA Cashyew Data are referred to collectively as the “Data.”
(a) The term “Cashyew Data Property” means all programs, files, systems, documentation, information, content, graphics, page layouts, site designs, user interfaces utilized or provided by Cashyew Data, work product produced by Cashyew Data, and derivate works of any of the foregoing, including, without limitation, the website or websites made available to you by Cashyew Data, any HTML programming performed as part of providing you with Data and any other special programs, functionalities, interfaces and other work product, ideas, concepts or techniques which Cashyew Data may develop, use or rely upon in providing the Data to you.
(b) All Cashyew Data Property shall be and will remain the property of Cashyew Data.
(c) As between you and Cashyew Data, Cashyew Data shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Cashyew Data Property and the Data.
2. Limited License.
Upon your execution of the Agreement and the payment of all amounts due Cashyew Data, you are granted a personal, nontransferable and nonexclusive license to use the Data solely for your direct marketing, market research and customer prospecting purposes, in strict accordance with the terms of the Agreement.
3. Limitations on Use.
(a) Unless specifically authorized in advance and in writing by Cashyew Data, you will not share, sell, transfer or otherwise make the Data available to any third person or entity that is a data reseller and you will use your best efforts to prevent the misuse or unauthorized use of the Data by employees, representatives, or any third person or entity. This data is for the use of those providing financial products, funding companies, ISO’s and brokers.
(b) You will not name or refer to Cashyew Data or your use of the Data in any of your advertisements or promotional or marketing materials.
(c) You will not use the Data for consumer credit purposes, underwriting consumer insurance, employment purposes, tenant screening purposes, for any other purpose covered by the federal Fair Credit Reporting Act or for any other purpose not expressly authorized by the Agreement.
4. Your Responsibilities; Use of Email Data; Review and Audit by Cashyew Data.
(a) Your use of the Data will comply with all applicable federal, state, local and foreign laws, statues, rules and regulations (“Laws”), including Laws regarding telemarketing, email and facsimile marketing, customer solicitation, do-not-call lists, the use of automatic dialing equipment, and all applicable guidelines of the Direct Marketing Association (“DMA”) and you shall be responsible for compliance in connection with your use of the Data. If you are not a member of the DMA, you will use your best efforts to comply with the DMA’s guidelines.
(b) Your use of any email Data will comply with all applicable Laws, including the CAN-SPAM Act, COPPA, the Telephone Consumer Protection Act, and any State Registry laws.
(c) You acknowledge that certain Data may include names and phone numbers that appear on one or more do-not-contact lists maintained by a federal, state, provincial, or other governmental entity or whose use may otherwise be regulated. You are responsible for subscribing to all applicable do-not-contact lists and you further agree to comply with all such relevant Laws, including those relating to any such do-not-contact lists.
(d) Cashyew Data reserves the right to review your use of the Data to ensure compliance with this Agreement, but any failure of Cashyew Data to review such use will not constitute acceptance of such use or waive any of Cashyew Data’s rights hereunder or limit any of your obligations with respect to the Data. At any time upon at least 3 days’ notice, Cashyew Data may audit your records to determine whether you are in compliance with this Agreement and you will make available to Cashyew Data or its representatives all records necessary for the conduct of such an audit.
(e) Cashyew Data maintains only a suppression list of data purchased from our site and no other site. Any data that you may have purchased from third parties has no influence on your Cashyew Data suppression list and no refunds or credits will be given in the event you have purchased duplicates or similar data from another third party.
(f) Cashyew Data reserves the right to sell its data only to financial companies, MCA ISOs and the like, brokers, and end users of the data. Data resellers are prohibited from purchasing data. Cashyew data may terminate any client’s account if Cashyew Data suspects that the client is a reseller or is purchasing data to resell.
5. Disclaimer of Warranties; Limited Warranty.
THE DATA IS PROVIDED ON A STRICTLY “AS IS” BASIS. CASHYEW DATA DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE DATA AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, CASHYEW DATA DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Liability.
Any mistake or error with the data, Cashyew Data will rectify the data at no additional charge to you if the request is made within 14 days of purchase of data.
Except as provided in the last sentence of Section 5, Cashyew Data will not be liable for any claim, demand, loss, liability, damage, injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or other damage caused in whole or in part or directly or indirectly by any use of the Data or any alleged or actual failure by Cashyew Data to comply with the terms of the Agreement, whether or not any such damages were foreseeable or whether Cashyew Data was advised of the possibility of such damages. Cashyew Data’s maximum liability under the last sentence of Section 5 will not exceed the amount you paid Cashyew Data under the Agreement within the 12 months preceding the event which gave rise to Cashyew Data’s liability.
7. Your Indemnification of Cashyew Data.
You shall indemnify, defend and hold harmless Cashyew Data, its stockholders, directors, officers, employees, independent contractors and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Data or any violation of the Agreement or any violation of Laws.
8. Interruption of Service.
You acknowledge that, given the technical nature of resources Cashyew Data requires to provide the Data to you, temporary interruptions may occur in the provision of Data and that any such interruptions shall not result in Cashyew Data having any liability to you or others and shall not suspend or eliminate your payment obligations to Cashyew Data or provide you with any refund rights for amounts previously paid to Cashyew Data.
9. No Assignment by You.
You may not assign your rights or obligations under the Agreement to any other person or entity without the prior written consent of Cashyew Data, whether by operation of law or otherwise, and any attempt to do so shall be void.
10. Additional Remedy of Termination.
In addition to all other legal rights and remedies available to Cashyew Data for any apparent, threatened or actual breach or violation of the Agreement by you, Cashyew Data has the right to terminate the Agreement and demand immediate return or destruction of the Data at any time if Cashyew Data believes you are not complying in full with the Agreement.
11. Governing Law; Jurisdiction.
The Agreement shall be governed by and construed under the laws of Colorado, without regard for the principles of conflicts of law of that State or any other state. Any litigation or other dispute relating to or arising under the Agreement shall only be brought in the state or federal courts located in El Paso County, Colorado and you agree to submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any such proceeding in those courts.
12. Payment for Non-Invoiced Products.
(a) Payment: You agree to pay Cashyew Data a fee in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Fees charged are nonrefundable. In the case of subscription products, the subscription term shall be effective for the agreed upon period, after which the subscription term shall automatically renew for the specified renewal period (if any) at the then current subscription price.
(b) Recurring Billing: If applicable, your acceptance of these terms constitutes your authorization to Cashyew Data to automatically charge the credit/debit card provided by you, and in the case of subscription products, to continue charging the credit/debit card at the agreed-upon intervals during the term of the subscription. You agree to provide Cashyew Data with complete and accurate billing and contact information and to update that information with thirty (30) days of any change to the billing information. Failure of the recurring payment process does not absolve your payment obligations.
(c) Termination for Subscription: The initial term of this Agreement shall be (1) month from the date on the order submission (“Initial Term”). Unless otherwise noted on an Order Form, after the Initial Term, provided neither party has terminated, this Agreement shall automatically renew for additional one (1) month terms (each an “Additional Term”). Either party may terminate this Agreement during the Initial Term, or any Additional Term, by providing 30 days written termination notice to the other Party. In the event of termination by either party, Client will be responsible to pay for the fees due hereunder for the final 30 days of the Term. The Initial Term, together with the Additional Terms, shall be considered the “Term.”
(d) Interest Charges: There will be interest charges on any amounts which you fail to pay when due at the rate of 1.5% a month, or such lower rate as may be equal to the maximum rate allowed by applicable law, on the unpaid amount.
If you use your credit card to fund your account, YOU AGREE NOT TO CHARGE BACK YOUR CARD until consulting with Cashyew Data to resolve the situation that brought about the possible chargeback. Cashyew does not guarantee you will close any deals using our data. In the event you breach this term and you charge back your credit card for all or partial amounts within your account, you will be charged an administrative service fee of one hundred ($100) dollars, which you agree to pay in addition to the amount of the Data purchase fees due for any Data you have received to the date of the chargeback.
13. Entire Agreement; Amendment or Waiver.
The Agreement contains the entire understanding between you and Cashyew Data and supersedes any prior understandings or agreements, oral or written, relating to the subject matter of the Agreement. The Agreement may only be amended by a document signed by you and Cashyew Data. No waiver of any breach of the Agreement shall be deemed a waiver of a future breach, whether of a similar or different nature, and no waiver shall be effective unless in writing signed by the waiving party.
14. File Management Library
Certain services, including Infousa.com, may include a file management library allowing you to store and access certain marketing creative (e.g. your logos, email creative, images) and other documents (collectively, “Marketing Content”) for your internal use. Any such Marketing Content and art will remain your property; however, you give Cashyew Data permission to host, store, and to allow access to your users. You are solely responsible for ensuring that you have all necessary rights and license to the Marketing Content and to use that Marketing Content in connection with the services. Cashyew Data is not responsible for actions you take with respect to your Marketing Content. You agree to not upload Marketing Content that, or otherwise use the services, to: (i) violate the intellectual property rights of any third party; (ii) engage in or promote illegal activity; or (iii) distribute viruses, worms, or other malware or malicious software. We reserve the right to delete or disable content alleged to violate the foregoing; however, Cashyew Data has no obligation to monitor or review your Marketing Content. You acknowledge that any file management library is made available for your convenience and is not intended to be used as a data backup service or in connection with disaster recovery. You are responsible for maintaining independent copies of all Marketing Content, including backup copies. Marketing Content is subject to deletion upon termination.
15. Execution; Counterparts.
The Agreement may be executed in its original, by facsimile or in electronically transmitted portable document format and it may be executed in any number of counterparts, each of which shall be deemed an original of the same document.