MASSIVE REAL ESTATE, LLC MASSIVE LEAD LISTS LICENSE AGREEMENT
This is a contract. This License Agreement (“Agreement”) accompanies the On Point Data online application, the direct marketing lists obtained from On Point Data and the data contained within the direct marketing lists (collectively, the “Services”). Massive Real Estate, LLC (dba “On Point Data”) grants you (“Customer”) a limited, non-exclusive, non-transferable license to use the Services, provided you accept the following terms on behalf of the company entered into the registration information:
The Services and all intellectual property rights therein are owned by On Point Data. No ownership rights are granted by this Agreement and, except for the limited license provided, On Point Data reserves all rights in and to the Services and all underlying data compilations and information contained therein, including but not limited to the exclusive intellectual property rights and the right to grant further licenses. Customer acknowledges that the Services are the proprietary property of On Point Data and are a valuable commercial product, the development of which involved an expenditure of substantial time and money by On Point Data.
2. Changes to this Agreement.
Service Provider may modify this Agreement from time to time by posting a modified Agreement on the website. Your continued use of the website and any emails thereafter will constitute agreement to such modifications. At the time of any material modifications, Service Provider will change the “Last Updated” date below. Please review this Agreement from time to time so that you are apprised of any changes.
3. Registration; Authority to Accept this Agreement.
By registering with this website, you understand and agree that you have established a business relationship between you and On Point Data. You represent that you are of legal age to form a binding contract and have the full power, capacity and authority to accept this Agreement. BY REGISTERING ON THE WEBSITE, YOU AGREE THAT MASSIVE LEAD LISTS MAY CONTACT YOU BY TELEPHONE AT THE NUMBER YOU PROVIDED OR BY EMAIL AT THE ADDRESS YOU PROVIDED REGARDING OTHER PRODUCTS OR SERVICES OFFERED BY OR THROUGH MASSIVE LEAD LISTS EVEN IF YOUR TELEPHONE NUMBER IS ON A DO-NOT-CALL REGISTRY OR SIMILAR LIST. With any email communication, On Point Data will provide a means by which you may opt-out of further communication.
4. Permitted Use.
The Services are solely for use within Customer’s own organization by Customer’s own employees. Customer shall be permitted to use the Services solely for Customer’s own internal direct marketing purposes. Customer may use each address or telephone number connected to a given property one (1) time only for direct marketing activities, including but not limited to: promoting, marketing, surveying or soliciting by Customer, by way of telemarketing, email marketing, any other advertising or promotional materials, such as flyers, pamphlets, brochures, mailers, video or audio tapes or electronic mail, whether in print or other media.
5. Restrictions on Use.
Both during and after the term of this Agreement, Customer agrees as follows:
(a) Customer shall not: (i) disclose, use, disseminate, reproduce or publish any portion of the Services in any manner other than as expressly permitted in this Agreement, (ii) permit any parent, subsidiary, other affiliated entity or other third party, including any third party entity involved in a joint marketing arrangement with Customer, to use the Services or any portion thereof, (iii) grant access to the Services, or any portion thereof, to individuals incarcerated in prisons or correctional institutions, (iv) allow access to the Services through any terminal located outside of Customer’s operations, (v) use the Services outside the United States.
(b) Customer shall not: (i) resell, relicense or redistribute the Services in whole or in part without the prior written consent of On Point Data, (ii) use the Services to create any derivative products, (iii) use the Services to create, enhance or structure any database in any form for resale or distribution, (iv) process or permit to be processed the Services or any portion thereof, with other data from any other source, (v) merge or incorporate the Services with any other file, (vi) use the Services to enhance a file or list owned by any third party, (vii) use the Services to develop any list, enhancement or product, or (viii) use the Services to prepare, publish, clean or maintain any directory.
(c) Customer shall (i) comply with all federal, state, and local laws, regulations, ordinances and court orders from competent jurisdictions, as well as the published guidelines of the Direct Marketing Association and other applicable industry guidelines, regarding the use, storage and dissemination of data such as the Services, (ii) abide by all prevailing federal, state, and local laws, regulations, ordinances and court orders from competent jurisdictions, including but not limited to those governing fair information practices and consumers’ rights to privacy, telemarketing, and any applicable non-solicitation laws and regulations; (iii) limit access to consumer information to those individuals who have a “need to know” in connection with Customer’s business and will obligate those individuals to acknowledge consumers’ rights to privacy and adhere to fair information practices and consumers’ right to privacy; (iv) abide by On Point Data’ privacy policies and Customer’s own privacy policies; and (v) use the Services in a manner that gives due consideration to matters concerning privacy.
(d) Customer understands that the data has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 1681(a) of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Customer shall not use the Services (i) as a factor in establishing an individual’s eligibility for credit or insurance, (ii) in connection with underwriting individual insurance, (iii) in evaluating an individual for employment purposes, (iv) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority, (v) in any way that would cause the Services to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or (vi) in any other manner that would cause such use of the Services to be construed as a consumer report by any pertinent governmental authority.
(e) Customer represents and warrants that it is not one of the following entities: Acxiom, America Online, Inc. (AOL), CBCInnovis, CD-Data, Choice Point, Costar Group, Data Solutions, DataWarehouse, Data Verify, Digital Risk, Experian, Equifax, Fair Isaac Corporation, Fidelity National Financial (FNF), Fidelity National Information Services (FNIS), Fidelity National Insurance Company, Fidelity National Title Group, First Data Solutions, FiServ, FNC, Google, Haines, InfoUSA, Insurance Service Office (ISO), International Data Management (IDM), Interthinx, iPlace, ISGN, Land America, Lender Processing Services, Lending Tree, Lexis/Nexis, MacDonald-Detweiler, MasterFiles, Merlin Data, Microsoft, Myriad Development, National Data Cooperative, National Information Services, New Reach, Real Net, RJ Peters, Sedgwick CMS, Stewart Information Services Corporation, SW Financial, Thompson-West Group, TransUnion, Veros, Yahoo!, and Zillow.
(f) Customer shall be solely responsible for maintaining the confidentiality of all usernames and passwords used by its employees and Customer shall be responsible for all use and fees associated with accessing the data with the password, whether or not authorized by Customer.
(g) Customer shall not use the Services for any purpose that (i) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, or (ii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
(h) Customer shall not remove, alter or obscure any proprietary notices in the Services and will reproduce all such notices on all copies or portions thereof.
(i) Customer shall not refer to any selection criteria or any presumed knowledge about the consumer being contacted in any direct mail solicitation, telephone solicitation or survey.
6. Compliance Audits.
On Point Data reserves the right, during normal business hours, on reasonable notice, and at On Point Data’ expense, to audit the Customer to ensure Customer’s compliance with the terms and conditions of this Agreement. On Point Data shall select an auditor in its sole discretion. If such auditor determines there has been a breach in Customer’s compliance with the terms of this Agreement, On Point Data may immediately terminate this Agreement and pursue its other legal remedies. Should Customer not cooperate with On Point Data’ audit request within five (5) days, Customer shall be deemed to have conclusively admitted to a material breach in Customer’s compliance for which On Point Data may immediately terminate this Agreement and pursue its legal remedies.
7. Records and Copy Review.
(a) Customer shall maintain current, accurate and complete records relating to its use of the Services for at least twelve (12) months after any direct marketing activity, including, but not limited to: sample mail pieces, telemarketing scripts, ad copy and other communications, as applicable. On Point Data, or any representative it designates, shall have the right to examine, copy and make extracts from all such records and any source documents used in preparation thereof, at any time during normal business hours, provided On Point Data gives Customer reasonable notice prior to any such examination.
(b) At any time upon On Point Data’ request, Customer shall provide On Point Data with a copy of the direct mail solicitations or telephone scripts used in connection with the Services. Upon reasonable notice, On Point Data reserves the right to review any such solicitations or scripts for compliance with this Agreement. In the event Customer fails to provide such items, On Point Data may delay delivery of the Services with no liability. If, in the sole judgment of On Point Data, the subject solicitations or scripts fail to comply with this Agreement, On Point Data may cancel or terminate this Agreement, with no liability.
In consideration of the rights granted to Customer hereunder, Customer shall pay to On Point Data the fees stated within the Services. By submitting an order to On Point Data, Customer authorizes On Point Data to charge the credit card entered into On Point Data by Customer for the Services at the fees stated within the Services. Fees are exclusive of use, ad valorem, personal property, and other taxes, which are the responsibility of Customer. On Point Data shall charge Customer applicable sales tax, and Customer shall be responsible for filing all other taxes. On Point Data reserves the right to change the fees for the Services at any time. Additional charges may apply for training users at Customer locations. Customer shall provide all Internet connectivity, hardware and software necessary to access On Point Data.
9. Term and Termination.
The initial term of this Agreement is twelve (12) months commencing on the date Customer enters into this Agreement. Thereafter, the term shall automatically renew for additional successive twelve (12) month terms. Either party may forego automatic renewal by giving the other party not less than thirty (30) calendar days written notice of termination prior to the expiration of the then-current term. If either party breaches any provision of this Agreement, the non-breaching party shall, upon providing written notice of such breach, be entitled to immediately terminate this Agreement, provided such breach is not cured within five (5) days following such notice. Upon termination of this Agreement by either party, Customer, at its own expense, shall return all Services to On Point Data or certify that the Services have been destroyed within ten (10) business days of termination, and any amounts unpaid by Customer shall be immediately due and payable. Failure to return or certify the destruction of the Services to On Point Data will result in: (i) Customer’s obligation to pay a perpetual license fee for the Services; or (ii) Customer’s obligation to permit and agent of On Point Data to have access to Customer’s premises for the retrieval of the Services and Customer shall pay the actual costs as reasonably incurred by On Point Data to retrieve same.
10. Links to Other Websites and Related Disclaimer.
The website may include links to other websites beyond the control of On Point Data. On Point Data provides you with these links solely for your convenience. Some of these websites may be co-branded (i.e., bear the name and/or logo of both a third party service provider and On Point Data). The provision of any link to another service provider does not signify an endorsement by On Point Data of the service provider’s website or the services offered by that service provider. On Point Data has no control over, does not review, and cannot be responsible for the information contained on other websites. Your use of such websites will be subject to that website’s terms and conditions. YOU AGREE THAT MASSIVE LEAD LISTS WILL NOT BE RESPONSIBLE OR LIABLE FOR LOSS OR DAMAGE YOU MAY INCUR AS THE RESULT OF A TRANSACTION YOU ENTER INTO THROUGH ANOTHER WEB SITE.
11. Potential Disruption of Service.
Access to the website may from time to time be unavailable, delayed or limited due to, among other things: hardware failure; software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or content irregularities; system overload; damage caused by severe weather, natural disasters, war or acts of God; terrorism; interruption of power supplies; strike or other stoppage of labor; governmental or regulatory restrictions; or any other cause whatsoever beyond the control of On Point Data.
THE SERVICES ARE INFORMATIONAL ONLY AND ARE NOT INTENDED TO PROVIDE SPECIFIC COMMERCIAL, FINANCIAL OR INVESTMENT ADVICE. THE SERVICES ARE BASED UPON CERTAIN DATA, SUBJECT TO FREQUENT CHANGE. MASSIVE LEAD LISTS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE METHODOLOGIES USED OR THE ACCURACY, TIMELINESS, RELIABILITY OR COMPLETENESS OF ANY OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ANY RELIANCE ON OR USE BY CUSTOMER OF THE SERVICES SHALL BE ENTIRELY AT CUSTOMER’S OWN RISK. MASSIVE LEAD LISTS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES IN ANY JURISDICTION, STATE OR REGION. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ANY AND ALL NECESSARY LICENSES, CERTIFICATES, PERMITS, APPROVALS OR OTHER AUTHORIZATIONS REQUIRED BY FEDERAL, STATE OR LOCAL STATUTE, LAW OR REGULATION APPLICABLE TO CUSTOMER’S USE OF THE SERVICES.
13. Limitation of Liability.
MASSIVE LEAD LISTS’ TOTAL LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO MASSIVE LEAD LISTS DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT WILL BE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE LIMIT. MASSIVE LEAD LISTS SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF MASSIVE LEAD LISTS IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. CUSTOMER AGREES THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, AND THAT THE SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH LIMITATIONS.
CUSTOMER AGREES TO INDEMNIFY AND HOLD MASSIVE LEAD LISTS HARMLESS FROM AND AGAINST ALL CLAIMS OF THIRD PARTIES ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES BY THE CUSTOMER, OR ATTRIBUTABLE TO CUSTOMER’S BREACH OF THIS AGREEMENT; PROVIDED THAT MASSIVE LEAD LISTS GIVES CUSTOMER PROMPT WRITTEN NOTICE OF ANY SUCH CLAIM. MASSIVE LEAD LISTS SHALL CONTROL THE DEFENSE AND ANY SETTLEMENT OF SUCH CLAIM, AND CUSTOMER SHALL COOPERATE WITH MASSIVE LEAD LISTS IN DEFENDING AGAINST SUCH CLAIM.
15. Claims of Copyright Infringement.
If you believe that your work has been copied and is accessible on the website in a way that constitutes copyright infringement, notify On Point Data in writing:
On Point Data
100-7 Rancho Rd #246
Thousand Oaks, California 91362
Any claim of copyright infringement should include sufficient information to enable On Point Data to evaluate your claim and to take appropriate action.
(a) Unless specified otherwise in a fully-executed license agreement with On Point Data, this Agreement constitutes the entire agreement between the parties with respect to the Services and supersedes any prior understanding or agreement, oral or written, relating to the Services.
(b) The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of California applicable to agreements executed and to be performed solely within California. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for the Central District of California, Orange County Branch and the Superior and Municipal Courts of the State of California, Orange County in any litigation arising out of relating to this Agreement or its subject matter. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(c) The prevailing party shall be awarded its reasonable attorney’s fees and costs in any lawsuit arising out of or related to this Agreement.
(d) No modification, amendment, supplement to or waiver of any provision of this Agreement shall be effective unless in writing and duly signed by an authorized representative of both parties hereto.
(e) Any provision of this Agreement that contemplates performance subsequent to the expiration or earlier termination of this Agreement shall survive such expiration or termination and shall continue in full force and effect until fully satisfied.
(f) On Point Data shall not be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of On Point Data.
(g) Customer may not assign this Agreement or any rights or obligations hereunder.
(h) Neither party shall use, or permit their respective employees, agents and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other party, or the other party’s affiliates, whether registered or unregistered, without such other party’s prior written consent.
(i) Except with prior written approval from On Point Data, Customer shall not disclose On Point Data as a data source to any third party, unless required by federal, state or local laws or government regulations and with prior written notice to On Point Data.
(j) Customer shall provide for physical security of the Services with the same degree of care (provided that such is at least a reasonable degree of care) that Customer uses to protect its own most sensitive data.
(k) Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (a) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities. Notices to On Point Data shall be sent to 100-7 Rancho RD #246, Thousand Oaks, CA 91362, with a copy to On Point Data counsel at the same address marked Attention: Legal Department. Notices to Customer shall be sent to the address entered by Customer in the On Point Data registration information. Notices or communications shall be deemed properly delivered as of the date personally delivered or sent by mail or overnight service.
By accessing the information contained within On Point Data and clicking “I Accept,” Customer agrees to be bound by all terms and conditions contained in this Agreement. By clicking “I Accept,” you assert that you: (1) are an authorized agent of Customer with the authority to bind Customer to the terms and conditions contained in this Agreement; (2) have read, understood, and agree to all terms, conditions, and notices contained or referenced herein and on the website; and, (3) agree to follow all applicable laws and regulations. If you do not accept the terms and conditions contained herein, you may not use the Services.
Last Updated November 25, 2019.
Important Information About Your Privacy as a Consumer
Important Information about Your Privacy.
On Point Data is one of the nation’s largest aggregator of publicly-recorded property information in the United States. We compile information recorded with the county recorder and assessors’ offices.
On Point Data is not engaged in direct marketing to consumers, and is therefore not subject to certain consumer privacy laws that apply to direct marketing companies. However, companies that engage in direct marketing are required to comply with state and federal laws designed to protect consumers from receiving unwanted solicitation.
To have your information removed from lists used for telemarketing and direct mail, you may register via mail and/or online with the organizations listed below. Generally, you will stop receiving telemarketing calls within 3 to 6 months of registration, but the timeframe may vary based on the guidelines of the applicable agency.
Direct Marketing Association (DMA):
Mail Preference Service
Direct Marketing Association
P.O. Box 9008
Farmingdale, NY 11735-9008
Telephone Preference Service
Direct Marketing Association
P.O. Box 9014
Farmingdale, NY 11735-9014
DMA Consumer Assistance Web site: https://www.dmachoice.org/dma/member/home.action
Getting Off Mailing Lists: http://www.the-dma.org/donotmail/
Getting Off Telephone Call Lists: http://www.ftc.gov/donotcall
Getting Off E-Mail Lists: www.dmachoice.org/EMPS/
Federal Trade Commission:
FTC National Do-Not-Call Registry: https://www.donotcall.gov/default.aspx
If you would like to have your name removed from real estate public records, please contact your county offices for options on how this can be achieved.
Important Information for Businesses About Consumer Opt-Out Regulations
On Point Data recognizes the challenges that our clients face regarding consumer opt-out regulations. Companies involved in direct marketing to consumers are required by law to comply with certain state and federal regulations that protect consumers from receiving unwanted solicitation. As a convenience to our clients, On Point Data performs the following services to make our suite of products more “opt-out friendly”:
Identify and scrub all telephone numbers in our database against the Federal Trade Commission’s National Do-Not-Call Registry according to the following intervals:
Phone numbers appended to transaction records received from county recorder offices are scrubbed daily
Phone numbers appended to records received from tax assessors’ offices are scrubbed twice monthly
Identify and scrub all mailing address files received from tax assessors’ offices against addresses registered with the Direct Marketing Association’s Mail Preference Service on a quarterly basis.
The following are links to some key providers of information regarding consumer opt-out regulations:
Direct Marketing Association (DMA):
DMA Consumer Assistance Website: https://www.dmachoice.org/dma/member/home.action
Getting off Mailing Lists: http://www.the-dma.org/donotmail/
Getting Off Telephone Call Lists: http://www.ftc.gov/donotcall
Getting Off E-Mail Lists: www.dmachoice.org/EMPS
Federal Trade Commission. FTC National Do-Not-Call Registry: https://www.donotcall.gov/default.aspx