MCH 2019 Standard Licensing Stipulations and Conditions Agreement
Version: August 2019
Application(s) When the capitalized word “Application(s)” is used herein, it stands for “any” MCH provided application that is used by you to either: generate a Data order (ex. MCH ListBuilder), update Data (example: MCH Azure cloud or FTP site), integrate Data into your computerized applications (example: MCH DataLocity) or helps you visualize, access or model Data (example: MCH Infinite Access). Some Application(s) require additional and different licensing Stipulations and Conditions specific to their use. Any conflict between these Stipulations and Conditions and an Application-specific Stipulations and Conditions will be resolved in favor of the Application-specific Stipulations and Conditions.
MCH Signed Order For these Stipulations and Conditions, an MCH Signed Order refers to any signed MCH order form, signed MCH agreement or paid MCH Invoice (if no order form applies).
Data or Licensed Data When the capitalized word “Data” or capitalized words “Licensed Data” is used herein, it stands for the data being licensed by you from MCH, described in any MCH Signed Order. The signature on any order form or agreement may be electronic or written. The definition of Data covered by the license includes all updates provided over the life of the license and any associated attribute data.
License Term When the capitalized words “License Term” are used herein, it stands for the period between the date of license activation and the date of license expiration. These two dates will be detailed in your MCH Signed Order. If no License Term is specifically listed in the MCH Signed Order, then License Term will default to one year starting from the order date. If you signed an MCH order that provides you access to any Application(s) and a specific License Term was not detailed for that Application, the default will be an annual term from the order date. If License Term for a Data order is listed as “Perpetual” then no license expiration date is needed.
License Type When the capitalized words “License Type” are used herein, it stands for the type of license for the Data that you have agreed too. The valid types are:
If no License Type is specifically detailed and agreed to, in any MCH Signed Order, then License Type will default to Limited-Term (of Annual) with Unlimited Use. Regardless of License Type, you are bound by the Stipulations and Conditions contained herein.
Stipulations and Conditions When the capitalized words “Stipulations and Conditions” are used herein, it stands for the entire contents of this document, including any schedules attached.
These Stipulations and Conditions are between you, either an individual or on behalf of an entity that you represent (“you” or “your”), and MCH, Inc (“MCH”, “we”, “our” or “us”). Your use of our Data and Application(s) is controlled by these Stipulations and Conditions set forth herein. MCH may choose to revise and update these Stipulations and Conditions from time to time and do so at our sole discretion. All changes are effective immediately. Please reference the date information that is provided above to indicate when the last update was made to these Stipulations and Conditions. Please make sure you thoroughly review the entire document to determine if it represents a new version in which you are agreeing (since your last order). When ordering online through our Application, you will be required to accept these Stipulations and Conditions by checking a box to advance in the Application ordering process and this will evidence your acceptance of all these Stipulations and Conditions. If you are signing an MCH internally generated order document, it will specifically note in the document a website link to these posted Stipulations and Conditions and by signing that order document will evidence your acceptance of these Stipulations and Conditions. Any changes to these Stipulations and Conditions must be made in writing and evidenced by signatures of both MCH and you.
3) LICENSE AND LICENSE RESTRICTIONS
3.1 License Subject to your payment of any applicable fees and relevant charges for the Data, MCH hereby grants to you a limited, non-exclusive, non-sublicensable, and non-transferable (except as permitted herein) license to the Data conditional upon the binding adherence to these Stipulations and Conditions set forth herein. The License Type detailed in the MCH Signed Order will list either Perpetual with Unlimited Use or Limited-Term with Unlimited Use or Limited-Term with Limited Volume Use (see definitions in Section 1) depending on the type of license you ordered and paid for. The length of the access to the Data is outlined in the MCH Signed Order under the heading License Term which will describe either a specific expiration date or detail perpetual use. The combination of your MCH Signed Order, the agreed License Type, agreed License Term and these Stipulations and Conditions will make up your entire agreement and license.
3.2 License Restrictions Regardless of License Term or License Type your access and use of the Data and Application(s) is solely for your internal business purposes only, including, but not limited to, marketing and promoting your goods and/or services, populating marketing and sales management systems or databases, and any other internal organizational uses of the Data. However, you shall not permit any person or entity to:
(a) Rent, sell, sublease, borrow, give-away, trade, barter, assign, distribute, publish, or transfer the Data or Application(s) outside of your company or organization. This includes prohibiting the public display of any of the Data or Application on any website, directory or any other published medium whether available to the public free or commercially sold. Vendors supporting your internal use efforts are permitted to access and use the Data or Application(s) on your behalf but only to explicitly support your approved use of the Data.
(b) Use the Data or Application(s) in ways that causes or may cause damage to MCH’s reputation or the reputation of the Data or Application(s), including the prohibited use of the Data or Application(s) to make industry competitive comparisons or create published statements or published studies about the Data, Application(s) or MCH.
(c) Bypass or breach any security device or embedded protections used by MCH in our Application(s) or Data, such as seeds or other devices that are used to ensure adherence with these Stipulations and Conditions.
(d) Remove, delete or alter any trademark, patent, copyright or other intellectual property rights notices from any Data or Application(s).
(e)Use the Data or Application(s) for the development, review or source material (either direct or part of a confirmation process) for any competing service, data product, or any other purpose that is to MCH’s detriment or commercial disadvantage.
(f) Use the Data (including emails) in violation of any current laws, including but not limited to Do-Not-Call laws, Fax laws, Can-Spam laws, European GDPR legislation (if it applies) and any future style privacy legislation such as the California Consumer Privacy Act (CCPA).
(g) Use the Data (including emails) for any communication activities that are deemed offensive, pornographic, racist, anti-semitic, or could be deemed libelous or threatening in nature.
4.1 Termination at end of License Term Your License Term is detailed in your MCH Signed Order. At the end of that License Term you will be required:
(a) For License Type equal to Limited-Term with Unlimited Use or Limited-Term with Limited Volume Use to renew the license for another License Term or delete the Data and remove any Application(s) covered by your license/order. You may be asked to confirm in writing that the full and proper removal of the Data and Application(s) has taken place. Failure to remove Data or Application(s) may result in legal actions being taken against you and financial penalties being sawt.
(b) For License Type equal to Perpetual with Unlimited Use you will NOT need to remove any Data and you can continue to use the Data per the allowable uses detailed in this license, but you will remain bound and must continue to abide with all these Stipulations and Conditions in perpetuity to prevent any future breach of your license. Application(s) are not for perpetual use only Data. Regardless of your Data retention privileges under a License Type of Perpetual with Unlimited Use, you will need to renew any Application license for another term or remove any Application(s) covered by your license/order. Failure to remove Application(s) may result in legal actions being taken against you and financial penalties being sought.
4.2 Termination for breach In the event you breach any provision of these Stipulations and Conditions, MCH has the right to terminate your access and use of the Data and Application(s). If you become aware of any actual or threatened activity prohibited by Section 3.1 or 3.2, you shall immediately notify MCH of any such actual or threatened activity and take all reasonable and lawful measures to stop the activity or threatened activity.
5.1 Method The prices and payment terms for Data and Application(s) do vary based on the kind of Data or Application(s) that are required (education vs healthcare – etc.), the volume of Data needed, desired License Type, length of License Term and level of customization required. All website orders (such as List Builder application) will ask you to provide a credit or debit card information at the time of order unless you have an Open Account established with MCH. You represent and warrant that either the account information or credit card information you supply to us is true, correct, and complete. Furthermore, you represent and warrant that you are authorized to either establish an open account or use a company credit card for the purchase. Additionally, you represent and warrant that all charges incurred by you will be honored by your company or credit card provider.
5.2 Taxes All charges and other amounts payable by you for any orders are exclusive of taxes. If required, you are responsible for tracking, reporting and paying all sales, use, and excise taxes in your local state, county, and local jurisdictions.
5.3 Refunds Except as allowed in Section 5.4, MCH does not offer any refunds for ListBuilder orders that have been successfully processed, paid for and delivered. The reason for this is because the actual use of the Data can be accomplished almost instantaneously once the Data is received. Email campaigns, data verification processes and data appending engagements can be performed in near real-time speed and it is simply impossible for MCH to determine what level of use of the Data has been achieved once an order is properly received. You understand and agree to this provision when you agree to these Stipulations and Conditions.
5.4 Refunds for problems Should the Data or Application(s) be defective MCH may choose to refund your order assuming the defects are beyond what is customary in the data and marketing industry. Note – no database is perfect, and all purchased data will contain some level of errors and omissions of data (missing elements). We suggest you order sample data to make sure the Data will meet your quality standards and use case needs. MCH strives to make all customers happy and we will do our best to make sure your order is meeting the highest commercial standards found in the industry.
6) INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership MCH is the sole and exclusive owner of all the intellectual property rights, title, copyrights, patents and interests in and to any Application(s) and provided Data. Nothing in these Stipulations and Conditions should be interpreted as a conveyance of any ownership to or title to any Application(s) or Licensed Data. These Stipulations and Conditions set out allowable use and restrictions of the Licensed Data. In the event a court would rule against any MCH intellectual property rights, you will irrevocably assign to MCH all your intellectual property rights and title to any MCH Application(s) and MCH Licensed Data. MCH may include some seed names and seed email addresses in the Licensed Data to protect our proprietary rights and confirm your compliance with these Stipulations and Conditions.
6.2 Licensed Data You agree that the Licensed Data is proprietary, copyrighted work of MCH and contains compilations of original authorship containing confidential information that does derive independent economic value, actual or potential, from not being generally known. You agree that you will not commit or permit any act or omission by your agents, employees, or a third party that would impair MCH’s copyright or other proprietary rights in the Licensed Data.
6.3 Confidentiality of Data and Applications Data and any Application(s) are licensed to you on a confidential basis for your organization's internal use. Your organization is responsible for any misuse of the Licensed Data or Application(s) by any third party under your control. This Agreement specifically prohibits any activity that would alter, modify, or adapt the Licensed Data or Application(s) for any external use cases. You will not use Licensed Data as a factor in establishing an individual’s eligibility for (a) credit or insurance to be used primarily for personal, family, or household purposes, or (b) employment. You agree that monetary damages would not be enough remedy for any breach of this Section 6 and that MCH will be entitled to equitable relief, including an injunction to stop further use and damage. Also, violations of Section 6 would be grounds for immediate termination of your license for breach of the agreement.
7) COMPLIANCE WITH LAWS
7.1 MCH Compliance MCH compiles Licensed Data using legal and open-source data methods. MCH works hard to maintain complete and accurate data within the confines of sound, ethical and economically feasible methods. MCH sources include (but are not limited too) publicly available State and National licensing data, other publicly available data, publicly sourced website information, self-reported survey data, US census information, and government directory information. MCH also makes tens of thousands of verification phone calls each month confirming data and improving coverage and accuracy. MCH fully complies with all CAN-SPAM, California Consumer Privacy Act (CCPA), EU’s GDPR, Do-Not-Call, and other relevant regulations. Our data is primarily business to business data that is created from public sources, so in many cases, this kind of data does not fall under the most restrictive parts of many existing data and privacy legislation. Our compiled emails are offered as “opt-out” produced lists, as is required by law. MCH does perform verification on all emails regularly through various methods. MCH also maintains status flags on all records and data elements to determine if they are active or deleted or requested as removed. Because MCH uses so many sources if we did not flag records as deleted or requested to be removed these records would likely re-appear back in the database from some future public source used after the removal was processed. Therefore, we maintain status flags on the records to help ensure requests for removal are honored properly and that deleted records do not get re-introduced by an incorrect source. As per GDPR and CCPA requirements, any individual that would like to see what data is maintained by MCH about them “personally” can contact MCH at 800-776-6373 and request this information. MCH must verify each request is coming from the individual that is the subject of the request.
7.2 Your Compliance MCH provides its Application(s) and Data for lawful purposes and expressly prohibits the use of any of the foregoing in any unlawful manner. You acknowledge that you understand and comply with the following: (a) it is a violation of Federal and State law to send unsolicited advertisements to a fax machine or an opt-out e-mail address, and (b) anyone violating those laws may be subject to civil and criminal penalties. You further acknowledge that you understand that MCH does “not” process your order or any content or information contained in our Data against Federal or State “Do Not Call Lists”. You are solely responsible for all such processing. You represent and warrant that you comply with, and will continue to comply with, all applicable Federal and State laws when using MCH’s Data, including but not limited to any laws relating to the transmission of unsolicited advertisements, do-not-call lists, telemarketing, sweepstakes, direct mail commerce laws, copyright or privacy breaches. MCH shall not be responsible for any fines, penalties, judgments or other liability incurred by you as a result of your violation of this Section 7.2. If your valid and legal use of the Licensed Data generates requests from individuals on the list to be removed or requests for other kinds of information, please provide this to MCH.
8.1 MCH Warranty MCH warrants to you that:
(1) MCH owns, or has valid licenses from any third party(s) to provide the Data or Application(s) as stated herein;
(2) MCH possesses valid compilation copyright therein, and has the right to license the Data or Application(s) herein;
(3) The MCH Database, Application(s) and Data and all components and elements thereof including but not limited to, the methods, processes, and documentation relating to compiling and storing the Data such as scripts, programs, data dictionaries, directories, database building instructions and other documentation related to the Data does not infringe any other party’s copyright, patent, trademark, trade secret or other proprietary right;
(4) The information included in the Data or Application(s) has been acquired legally, does not infringe any other party’s copyright, patent, trademark, trade secret or other proprietary right and does not violate any law of the United States, or any state, municipal or local government, and
(5) The Data has been adequately compiled and formatted, and the licenses conveyed herein do not violate any law of the United States or any state, municipal or local government.
8.2 Disclaimer of Warranty EXCEPT AS OTHERWISE AGREED TO IN A WRITING SIGNED BY MCH, MCH DOES NOT MAKE ANY WARRANTY, EITHER EXPRESS OR IMPLIED (IN LAW OR FACT), AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, AS TO THE QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PRODUCTS, SERVICES, APPLICATIONS OR LICENSED DATA. ALSO, MCH DOES NOT REPRESENT OR WARRANT:
(A) THE ACCURACY OR TIMELINESS OF THE LICENSED DATA CONTAINED IN ANY APPLICATION, PRODUCTS, AND SERVICES OR LICENSED DATA ITSELF,
(B) THAT THE APPLICATION, PRODUCTS AND SERVICES OR LICENSED DATA WILL ACHIEVE ANY PARTICULAR RESULTS, OR
(C) THAT ANY DEFECTS IN THE APPLICATION, PRODUCTS, SERVICES OR LICENSED DATA WILL BE CORRECTABLE OR CORRECTED. THE APPLICATION, PRODUCTS, SERVICES AND THE LICENSED DATA ARE FURNISHED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY AND ACCURACY REGARDING THE SAME IS WITH YOU.
9) LIABILITY AND INDEMNIFICATION
9.1 Limitation of Liability IN NO EVENT WILL MCH BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) INCURRED BY YOU OR ANY OTHER PARTY, WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT, BREACH OF CONTRACT OR OTHERWISE, EVEN IF MCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON MCH, THEN YOU AGREE THAT MCH’S MAXIMUM TOTAL LIABILITY TO YOU SHALL BE LIMITED TO THE AMOUNT PAID BY YOU, FOR THE PRODUCTS, SERVICES, LICENSED DATA OR APPLICATION SUBSCRIPTION FEES UNDER THE AGREEMENT.
9.2 MCH Indemnification MCH shall indemnify, defend, and hold you, including your affiliates, directors, officers, employees, agents, successors and assigns, harmless from any and all claims, actions, causes of action, orders, arbitrations, proceedings, losses, damages, liabilities, judgments, and expenses (including, without limitation, reasonable attorneys’ fees and costs) as a result of an MCH breach of any of MCH’s representations or warranties set forth herein, provided that:
(a) You shall have promptly notified MCH within 60 days of such claim in writing, and
(b) MCH shall have control of such defense and any settlement thereof.
Any of your party shall have the right, at their own expense, to participate in the defense of any such claim through counsel of choosing and shall cooperate with MCH in the defense of such claim. If infringement is held to exist, MCH shall, at its own expense and its option, either: supply to your revisions to the infringing material to make it non-infringing or procure for you, at no additional expense, the right to continue to reproduce and redistribute the infringing material as permitted herein. In the event the foregoing is not reasonable, you may immediately cancel this agreement without penalty or additional payment.
9.3 Your Indemnification You will indemnify, defend, and hold MCH, including our affiliates, directors, officers, employees, agents, successors and assigns, harmless from any and all claims, actions, causes of action, orders, arbitrations, proceedings, losses, damages, liabilities, judgments, and expenses (including, without limitation, reasonable attorneys’ fees and costs) as a result of a breach by you and any of your representations or warranties set forth herein.
In addition, in the event that MCH seeks injunctive relief or any other remedy from a court as a result of the breach or threatened breach of this agreement by you or any of your affiliates or agents, then, if successful, MCH shall be entitled to recover from you the costs and expenses of obtaining that relief or remedy, including reasonable attorneys’ fees and expenses.
If the parties are unable to resolve any dispute, they shall participate in a minimum of one non-binding mediation conference in the Kansas City, Missouri metropolitan area with a mutually acceptable independent mediator whose fees shall be paid equally by the parties. Each party shall designate an executive officer having authority to resolve the dispute to participate in the mediation conference. If the parties are unable to resolve the dispute within thirty (30) days after the date of mediation (or the refusal of a party to participate in mediation), either party may submit the dispute to binding arbitration per the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be held in the Kansas City, Missouri metropolitan area. Each party shall pay one-half of the costs of such arbitration; provided, however, that the arbitrator shall have the authority to assess all such costs against any party found not to have participated in the mediation process in good faith.
11.1 No Waiver These Stipulations and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Stipulations and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these Stipulations and Conditions shall be binding upon MCH unless they are made in writing and signed by a duly authorized representative of MCH. No conditions, usage of trade, verbal understanding or agreement purporting to modify, vary, explain, or supplement these Stipulations and Conditions shall be binding unless hereafter made in writing and signed by the party to be bound. No modification or additional terms or new conditions shall be applicable or enforceable against MCH if found in (or sent as part of) acknowledgments, acceptance of purchase orders, shipping instruction forms, regular email communications or other documentation containing such changed Stipulations and Conditions, unless they are agreed to and signed by MCH.
11.2 Severability If any provision of the license or these Stipulations and Conditions or the application thereof to any person or circumstance is invalid or unenforceable, the remainder of the license and these Stipulations and Conditions and the application of such provision to other persons or circumstances will not be affected and will be enforced to the greatest extent permitted by law.
11.3 Force Majeure Notwithstanding anything herein to the contrary, MCH will not be liable for delays in performance or in delivery of its obligations under the signed order to the extent that such delays are due to either: (a) causes beyond MCH’s reasonable control; (b) acts of God, acts of civil or military authority, embargo, currency restrictions, fire, strikes, accidents, floods, epidemics, quarantine restrictions, war, riot, delays, non-availability of transportation; or (c) inability to obtain necessary labor, materials, components or facilities through regular channels due to causes beyond its reasonable control. Any delay occasioned thereby will not be considered a breach of this Agreement.
11.4 No Assignment You may not assign any of your rights or delegate any of your obligations under these Stipulations and Conditions, directly or indirectly, by operation of law or otherwise, without our prior written consent of MCH.
11.5 Governing Law This license and these Stipulations and Conditions are governed by and will be construed under the laws of the State of Missouri (without application of principles of conflicts of law).
11.6 Notices We may provide you notice under these Stipulations and Conditions by sending an email message to the email address you provide to us. Any notice given to us under these Stipulations and Conditions must be in writing and must be delivered by mail or email (and acknowledge in writing by us) to the address below.
MCH Strategic Data, Inc.
601 East Marshall St. – PO Box 295
Sweet Springs, MO 65351
Attention: Amy Rambo
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