1. Scope of Services. By signing a Cortera Pulse Order Form incorporating these Cortera Pulse Terms and Conditions (the “Terms of Use” or “User Agreement”), the company identified in the Cortera Pulse Order Form (the “Customer”) shall be granted, subject to the terms herein, a non-exclusive, restricted license to use the services made available to Customer by Cortera, including the services listed therein (the “Cortera Services”).
2. Restricted License. Cortera hereby grants to Customer a non-exclusive, non-transferable, restricted license (without the right to sublicense) to use the Cortera Services solely in connection with present or prospective credit, financial, or risk management transactions with the business entities to which the Customer’s inquiries relate. Customer will not use the Cortera Services as a factor in establishing an individual’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, or employment purposes, or for any other purposes governed by the Fair Credit Reporting Act. Customer will use the Cortera Services in compliance with all laws, regulations, and ordinances that, in Cortera’s opinion, govern the use of the Cortera Services, and in compliance with all use restrictions set forth in the User Agreement or hereafter adopted by Cortera. Customer’s use of the Cortera Services shall be for internal business purposes only. Customer hereby warrants that it is not a competitor of Cortera or accessing the Cortera Services on behalf of, or at the direction of, a competitor of Cortera. Customer shall not resell, broker, transfer, or otherwise make the Cortera Services and/or the information contained therein available to any third parties. Customer shall not use the Cortera Services, or store the information contained therein, for the purpose of creating product(s) that compete with the Cortera Services or to compare the Cortera Services to a competitive offering. Customer agrees that if Cortera determines or reasonably suspects that Customer is reselling or brokering the Cortera Services’ information, programs, computer applications, or data, or is otherwise violating any provision of these Terms of Use, Cortera may take immediate action, including terminating the delivery of, and the license to use, the Cortera Services.
3. Security. Customer acknowledges that it is Customer’s duty to keep secure and hold in the strictest confidence all Cortera Services user identification codes (the “User IDs”) and the information obtained through the Cortera Services. Accordingly, Customer agrees to: (a) restrict access to the Cortera Services to employees who have a need to know; (b) immediately deactivate the User IDs of any employee who no longer has a need to know, or for terminated employees on or prior to the date of termination; (c) unless otherwise agreed, prohibit the sharing of User IDs amongst Customer’s employees; (d) take all commercially reasonable measures to prevent unauthorized access to, or use of, the Cortera Services or the data received therefrom, whether the same is in electronic form or hard copy, by any third party; (e) not access and/or use the Cortera Services via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by Cortera; and (f) not use any framing techniques to frame, wrap, or enclose the Cortera Services or the information contained therein.
4. Fees. Customer agrees to pay for the services as specified in the Cortera Pulse Order Form, and for all other services, Customer agrees to pay the then-prevailing fee for the information requested through the Cortera Services as described in the Cortera Pulse Order Form and in Cortera’s published price lists. All Cortera Services not specified in the Cortera Pulse Order Form will be billed at Cortera’s then-current published prices. The fees for all Cortera Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they will be charged to Customer’s account. For Cortera Pulse, Customer agrees to submit its entire accounts receivable portfolio to Cortera (the “Full A/R File”) one time per calendar month. Customer must submit its initial Full A/R File within fifteen (15) business days of the Effective Date; provided, however, that if Customer fails to submit its initial Full A/R file within fifteen (15) days of the Effective Date, Customer acknowledges that Cortera may begin charging fees associated with Cortera Pulse and may continue to do so through the remainder of the term specified in the Cortera Pulse Order Form and Cortera will be deemed to have fully performed its obligations associated with Cortera Pulse. If Customer fails to submit its Full A/R File at any time following submission of the initial Full A/R File, Cortera will provide Cortera Pulse utilizing the last Full A/R File submitted by Customer and Cortera will be deemed to have fully performed its obligations associated with Cortera Pulse. Fees for services rendered during the period from the Effective Date and the first day of the month following the Effective Date will be prorated. Fees described for Cortera Pulse service are on a per file basis, meaning that Customer will be billed separately for each file submitted to Cortera for monitoring.
5. Payment of Fees. Customer agrees to pay for all services specified in the Cortera Pulse Order Form and for all other Cortera Services obtained through Customer’s User IDs via the payment method selected in the Cortera Pulse Order Form. All invoices must be paid within thirty (30) days of receipt, and Customer acknowledges and agrees that it may be electronically invoiced (via e-mail to the billing contact designated in the Cortera Pulse Order Form, or via such other means as announced by Cortera). All unpaid fees and late payments will bear interest at a rate of 18% per annum. Cortera may immediately suspend Customer’s access to the Cortera Services in the event of non-payment and/or late payment, as a condition of reactivation, may in its sole discretion require Customer pay all fees for the Cortera Services in advance via credit card.
6. Term and Termination. The initial term remains in effect for the period of time specified in the Cortera Pulse Order Form. Thereafter, the term shall automatically renew as specified in the Cortera Pulse Order Form. Customer may terminate this User Agreement, effective at the end of the then-current term, upon at least thirty (30) days prior written notice to Cortera. In addition to any other remedy available to Cortera under these Terms of Use, Cortera may terminate This User Agreement if Customer commits a material breach. This User Agreement will automatically terminate in the event that either party becomes insolvent, admits its inability to pay its debts in writing, or ceases to carry on the business carried on by it. Provisions hereof relating to limits on liability, indemnification, use and protection of the Cortera Services and its information and data, payment for the Cortera Services, audits, Cortera’s right to contributed Trade Data (as defined in paragraph 11 below), and disclaimers of warranties shall survive the termination of This User Agreement. Should you continue to use the Cortera Services following termination of this Agreement, the fees applicable to such usage shall be the then-prevailing fee for the Cortera Services as described in Cortera’s retail price lists.
7. Intellectual Property. Customer agrees that Customer shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the Cortera Services’ information, programs, or computer applications. Customer acknowledges that Cortera (and/or its third-party data providers) shall retain all right, title, and interest under applicable contractual, copyright, and related laws in and to the data and information that they provide. Customer shall use such materials in a manner consistent with Cortera’s interests and notify Cortera of any threatened or actual infringement of Cortera’s rights. Customer shall not remove or obscure the copyright notice or other notices contained on materials accessed through the Cortera Services.
8. Limitation of Liability. Neither Cortera, nor its subsidiaries and affiliates, nor its third-party data providers, nor its third party customer referral sources and endorsers of the Cortera Services (collectively, the “Cortera Parties”) shall be liable to Customer for any loss or injury arising out of or caused in whole or in part by the Cortera Parties’ acts or omissions in procuring, compiling, collecting, interpreting, reporting, communicating, or delivering the Cortera Services. If, notwithstanding the foregoing, liability can be imposed on the Cortera Parties, then Customer agrees that the Cortera Parties’ aggregate liability for any and all losses or injuries arising out of any act or omission of the Cortera Parties in connection with anything to be done or furnished under these Terms of Use, 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 $100.00; provided, however, that such limitation of liability shall not apply to Cortera’s indemnification obligation detailed in paragraph 10 below, and Customer covenants and promises that it will not sue any of the Cortera Parties for an amount greater than such sum even if Customer was advised of the possibility of such damages, and Customer agrees that it will not seek punitive damages in any suit against any of the Cortera Parties. In no event shall Cortera be liable for any indirect, incidental, special, or consequential damages, however arising, incurred by Customer from receipt or use of the Cortera Services or the information delivered hereunder or the unavailability thereof.
9. Disclaimer of Warranties. Customer acknowledges and agrees that Cortera will use reasonable efforts to deliver the Cortera Services requested by Customer and to compile information gathered from selected public records and other sources used in the provision of the Cortera Services; provided, however, that the Customer accepts all information on an “as is,” “as available” basis. Customer acknowledges and agrees that Cortera obtains its data from third-party sources, which may or may not be completely thorough and accurate, and that Customer shall not rely on Cortera for the accuracy or completeness of information supplied through the Cortera Services. Cortera reserves the right at any time to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of, the Cortera Services. Cortera does not guarantee or warrant the correctness, completeness, merchantability, or fitness for a particular purpose of the Cortera Services or information provided therein; provided, however, that Cortera does hereby warrant that neither the Cortera Services nor the data contained therein infringe upon the intellectual property rights of any third parties. The Cortera Services may contain hyperlinks to third party websites, and Cortera assumes no responsibility and has no control over the information and or content contained therein.
10. Indemnification. Customer hereby agrees to protect, indemnify, defend, and hold harmless the Cortera Parties 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 its use of the Cortera Services. Cortera hereby agrees to protect, indemnify, defend, and hold harmless Customer 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 any breach of the limited warranty regarding non-infringement made in paragraph 9 above.
11. Data Contribution. “Trade Data” shall mean an accounts receivable file of each of Customer’s active and historic accounts, including each Full A/R File submitted by Customer. Each Trade Data submission must meet Cortera’s minimum data requirements and must contain information on all of Customer’s active and historic customer accounts. Customer hereby represents and warrants to Cortera that all of the Trade Data shall be true, accurate, and complete to the best of its knowledge and belief as of the dates submitted to Cortera. Customer grants to Cortera a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide, sublicenseable right and license to use, reference, copy, modify, create derivative works from, display, publish, and distribute the Trade Data, including for the purposes of: (i) inclusion in Cortera products and services, whether directly or indirectly, including without limitation, Cortera products and services that are sold on a stand-alone basis and those that are integrated into third party products and services; (ii) use in products or services which may be sold or licensed to third parties by Cortera or its distributors; and (iii) Cortera’s business use, including without limitation, use in any manner chosen by Cortera, including but not limited to, the use of such Trade Data to generate, use, and publish aggregate statistical information. The foregoing license shall survive the termination of this User Agreement. This license shall supersede and control over any separate confidentiality or non-disclosure agreement between the parties inasmuch as Cortera shall be permitted to retain any Trade Data provided to Cortera and use such Trade solely to the extent permitted by the license granted to Cortera above. Cortera shall own all rights, title, and interest in and to any materials, products, or services created by or on behalf of Cortera in any form containing or derived from the Trade Data (or any part thereof), and Customer shall have no ownership, authorship, or moral rights therein. Cortera shall not identify Customer as the source of the Trade Data to any third party unless required to do so by legal process. Subject to the license granted to Cortera above, Cortera will not sell Trade Data submitted by Customer as a stand-alone product to any third parties. Cortera reserves the right at any time to discontinue pricing promotions, if any, for contributors of Trade Data (as defined in paragraph 11 below), or to remove Trade Data contributor discounts from Customer’s account if Cortera discovers that Customer has failed to contribute Trade Data as agreed or if Customer’s Trade Data submissions fail to meet Cortera’s minimum requirements.
12. Governing Law; Exclusive Jurisdiction; Attorney’s Fees; Assignment. These Terms of Use shall be governed by and construed in accordance with the laws of the State of Florida, without effect to conflict of law principles. Additionally, any action arising under these Terms of Use shall be brought within the jurisdiction of the courts of Palm Beach County, Florida. The prevailing party in any action, claim, or lawsuit brought pursuant to these Terms of Use is entitled to payment of all attorney’s fees and costs expended by such prevailing party in association with such action, claim, or lawsuit. These Terms of Use may not be assigned by Customer, in whole or in part, without the prior written consent of Cortera. For purposes of these Terms of Use, a change in ownership of twenty percent (20%) or more of the outstanding shares of Customer shall constitute an assignment.
13. Audit. Customer understands and agrees that Cortera may conduct periodic reviews of Customer’s use of the Cortera Services to ensure compliance with the terms of these Terms of Use and Cortera’s third party data provider contracts. Violations discovered in any review or audit may be subject to immediate action, including but not limited to the imposition of reactivation fees, the termination of these Terms of Use, and/or legal action.
14. Relationship of the Parties; Publicity. Customer and Cortera are independent contractors of one another. Neither party shall at any time represent that they are authorized agents or representatives of one another. Without Cortera’s prior written consent, Customer will not issue press releases relating to these Terms of Use or use Cortera’s logos or trademarks in promotional materials or on its web site. Cortera may, upon notice to Customer, issue press releases relating to these Terms of Use and display Customer’s name in Cortera’s customer list in promotional materials and on its web site.
15. Changes in User Agreement. Customer agrees to comply with changes to the restricted license granted in paragraph 2 above, changes in pricing, and changes to other provisions of these Terms of Use as Cortera shall make from time to time upon notice to Customer. For Cortera Services listed in the Cortera Pulse Order Form, pricing may only be changed at the commencement of the next renewal term upon sixty (60) days advance notice. Such changes may be made from time to time by any of the following methods: online announcements, customer bulletins, emails, online “click wrap” amendments, changes to the Cortera Pulse Terms of Use, changes to the Privacy Notice, mail, facsimile, announcements in invoices, revised published price lists, or any other written notice.
16. Force Majeure. Cortera shall not be responsible for any delay or failure in performance resulting from occurrences beyond its reasonable control, including acts of God, war, terrorism, riot or other civil disturbance, outages of electrical, telecommunications or computer server hosting services, acts of government, labor strikes, or lockouts.
17. Entire User Agreement; Miscellaneous. Except as otherwise set forth herein, these Terms of Use sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters of intent, User Agreements, covenants, negotiations, arrangements, communications, representations, understandings or warranties, whether oral or written, by any officer, employee, or representative of either party relating thereto. Any new, other, or different terms supplied by Customer that are not contained in this document, including any terms contained in purchase orders or confirmations issued by Customer, are specifically rejected by Cortera. The terms of these Terms of Use shall supersede and govern in the event of a conflict with the terms of any other document into which these Terms of Use is incorporated by reference. In the event one or more provisions of these Terms of Use are deemed unenforceable, the enforceability of the remaining provisions shall remain unimpaired. All capitalized terms not defined in these Terms of Use shall have the meanings ascribed to them in the Cortera Pulse Order Form.
Last Updated: June 29, 2011
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