Terms and Conditions

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1. Products and Services

Products to be provided to Licensee and pricing for those Products will be detailed in a product schedule governed by this agreement or via Infutor’s websites. Services to be provided to Licensee and pricing for those Services will be detailed in a statement of work (“SOW”) governed by this agreement. Services may include Infutor Data as part of the deliverables. Infutor may modify the sources, content, or format of Data it delivers to Licensee.

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2. Definitions

Data-related Definitions “Data” means the information provided by either party under this agreement that relates to the identity or characteristics of individual entities. “Infutor Data” means the Data provided to Licensee by Infutor. “Data Element” means an individual piece of information included in the Data, such as a name, a phone number, or a characteristic score. “Record” means the set of all Data Elements related to a single entity. For example, a Record may contain Data Elements related to an individual person such as phone number, address, email, and the VIN of their automobile. “Product” means the Infutor Data and the processes for delivering that Data to Licensee. “Infutor File” means a collection of Data in a set format provided by Infutor to Licensee and stored in a location or locations under Licensee’s control.

“Data Enhancement” means performing operations on Data in order to improve the accuracy or relevance of the Data. Enhancement operations include:

1. Append or Reverse Append: adding new Data Elements to a Record.
2. Filter: generating a set of Records based on the values of Data Elements in each Record.
3. Enhance: changing the value of existing Data Elements.

“List” means the set of Data generated from a Filter operation. “Input” means a query from Licensee to Infutor that contains the parameters of a particular Data Enhancement to be performed. “Match” means a set of Data Elements provided to Licensee as a result of an Input. “End User” means an entity that uses Infutor Data for its own internal purposes and does not provide the Infutor Data to one or more third parties who are not Data Service Providers. “Reseller” means an entity that provides Infutor Data to one or more third parties who are not Data Service Providers. “Data Service Provider” means an entity that provides Data Enhancement on behalf of Licensee solely for that Licensee’s benefit. “Batch” means any Data transfer or delivery method in which the Data is transferred from one party to the other in bulk, generally via FTP or SFTP. “API” means a Data transfer or delivery method based on individual queries to Infutor’s web application program interface. “PII” means Data that meets the definition of PII in Section 2.1 of NIST Special Publication 800-122. The definition is reproduced here for convenience: “PII is any information about an individual maintained by an agency, including (1) any information that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and (2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.”

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3. Data Uses and Limitations

Infutor will grant a license to the Products and Infutor Data in product schedules and SOWs governed by this agreement, or via Infutor’s website product descriptions. The product schedule, SOW, or website product description will specify what uses Licensee is allowed with respect to the Products and Infutor Data. The following restrictions apply to Licensee’s use of the Products: The parties shall not transmit batch data to each other except via Infutor’s FTP, SFTP, or Amazon S3. The parties shall transmit files containing PHI, PII, or other protected data only via SFTP or Amazon S3. Such files must be encrypted using public key encryption and each party shall provide their public key to the other party upon request. Licensee shall not provide Product access or Infutor Data to any third party other than a Data Service Provider, unless explicitly allowed in the relevant product schedule, SOW, or website product description. If Licensee is allowed to provide Products to a third party, Licensee shall include terms substantially similar to those in the End User Flowdown Terms section in their agreement with the third party. If Licensee utilizes a Data Service Provider, Licensee shall include terms substantially similar to those in the Data Service Provider Flowdown Terms section in their agreement with the Data Service Provider. Licensee shall not attempt to reverse engineer or otherwise replicate the functionality of any software, tools, or analysis methods which are provided to Licensee by Infutor or used in the provision of Services or Products by Infutor, except as permitted by law.

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4. Compliance

a) Consumer Inquiries Licensee shall respond to all consumer inquiries about Licensee’s use of Infutor Data. Licensee shall not make marketing solicitations using Infutor Data to individuals who have requested not to receive such solicitations from Licensee. Licensee may communicate consumer inquiries that involve the accuracy of the Infutor Data to Infutor. Infutor shall cooperate with Licensee to address any consumer issues that Licensee has made reasonable efforts to resolve. b) Consumer Reports Licensee shall not use Infutor Data as the source for determination of consumer credit worthiness, consumer credit approval, or a consumer's eligibility for employment or insurance. Licensee shall not use Infutor Data as the sole source in generating a consumer report as defined in 15 USC §1681a. c) Data Protection Licensee shall maintain administrative, physical, and technical safeguards that are no less rigorous than accepted data industry practices in order to prevent the release of any PII to unauthorized parties. d) Contact Persons Each party shall designate a contact person for communications related to the use of the Products and Data. e) Suspension of Delivery If Infutor believes that Licensee’s use of or handling of Infutor Data is not in compliance with this Agreement, Infutor may restrict delivery of Infutor Data until Infutor is reasonably satisfied that Licensee is in compliance.

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5. Audit

For Products purchased via a product schedule, Infutor may, once per calendar year and upon 14 days’ written notice, audit Licensee’s use and handling of Infutor Products, including payment obligations. Each party shall be responsible for their own costs for such audits. Infutor’s audits shall be limited to records that relate to the Infutor Products. Infutor shall conduct audits in a manner that does not substantially disrupt Licensee’s normal operating procedures. Licensee shall keep relevant records for 3 years after termination. Infutor may conduct one audit during the 12 months after termination.

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6. Payment

a) Timing Licensee shall pay invoiced amounts no more than 30 days after the date of the invoice (the “Due Date”). To dispute an invoice, Licensee must provide written notice to Infutor before the Due Date. If Licensee fails to pay undisputed invoiced amounts on or before the Due Date, Licensee shall owe 1.0% interest per month, beginning on the Due Date, on all unpaid amounts, and Infutor may, upon 10 days’ written notice to Licensee that payment is overdue, suspend access to the Products. b) Tax Licensee is responsible for all sales, use, and other applicable taxes or duties related to the purchase of the Products.

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7. Versioning

This agreement may be updated by Infutor from time to time. The version governing the purchase will be the version displayed on the website at the time a SOW or product schedule is executed, renewed, or when a new Subscription Term begins. For Products purchased via the website, the version in effect at the time of purchase will govern.

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8. Governmental Regulation

In the event that any law or governmental regulation restricts Infutor’s ability to provide the Products, Infutor may terminate the affected product schedules and SOWs upon no less than 30 days’ prior written notice to the other party. Upon such termination, if required by law or governmental regulation, Licensee shall destroy the affected Infutor Data.

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9. Warranties

Infutor warrants that the Products do not infringe on any United States a) patent, b) copyright, or c) other intellectual property right. Infutor warrants that the Products do not violate any applicable laws or governmental regulations. The Infutor Data is provided as-is.

Infutor warrants that the Services will be performed in a good and workmanlike manner. Licensee's sole remedy and Infutor’s entire liability with respect to this warranty will be, at the sole option of Infutor, to either (a) use reasonable efforts to reperform any Services not in substantial compliance with this warranty or (b) refund amounts paid by licensee related to the portion of the Services not in substantial compliance; provided Licensee notifies Infutor in writing no more than 5 business days after performance of the applicable Services.

Infutor makes no other warranties, express or implied, and disclaims all other warranties, including warranties of merchantability, accuracy, and fitness for a particular purpose.

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10. Limitation of Liability

Infutor will not be liable for incidental damages, loss of profits, or any breach-of-contract damages that a person could not have reasonably foreseen at the time of breach, even if Infutor is notified of the possibility of such damages. Infutor will not be liable for damages in excess of the fees paid to Infutor by Licensee in the 12 months preceding the claim giving rise to the liability.

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11. Indemnification

Infutor will be liable to Licensee for damages incurred due to any third party claim against Licensee resulting from Infutor’s breach of any warranty in this agreement, provided that Infutor is given prompt notice of the claim and full control over the defense of the claim. Licensee shall reasonably cooperate with Infutor in the defense of the claim. Infutor shall not include an admission of wrongdoing by Licensee without Licensee’s approval, which Licensee shall not unreasonably withhold. Licensee may be represented by counsel of its choice and may be present at all associated proceedings. Licensee will be liable to Infutor for damages incurred due to any third party claim against Infutor resulting from Licensee’s use of Infutor Data or Licensee’s failure to comply with any law or regulation, provided that Licensee is given prompt notice of the claim and full control over the defense of the claim. Licensee shall not include an admission of wrongdoing by Infutor without Infutor’s approval, which Infutor shall not unreasonably withhold. Infutor may be represented by counsel of its choice and may be present at all associated proceedings.

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12. Force Majeure

Neither party will be liable to the other for any failure of performance of its obligations under this agreement if the failure is due to an event beyond the party’s control, including without limitation government action, fire, flooding, acts of war or terrorism, and internet or power outages. The affected party shall make reasonable efforts to mitigate the effects of the event, and shall promptly notify the other party of the nature and extent of the event.

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13. Confidentiality

a) Confidential Information In this agreement, “Confidential Information” means any information given by one party (the “Discloser”) to the other party (the “Recipient”) that: a) is marked as confidential or with any equivalent marking; b) the Discloser states is confidential at the time the information is disclosed; or c) a reasonable person would recognize to be confidential given the circumstances surrounding the disclosure. Confidential Information includes, but is not limited to: data, software, algorithms, credentials, pricing, financial information, customer information, and information about business conducted between the parties. Confidential Information does not include any information: a) received from a third party that was not, at the time of disclosure, subject to obligations of confidentiality with respect to the information; b) known to the general public, other than as a result of a breach of this agreement; c) which was previously known by the Recipient; d) independently developed by the Recipient without the use of the Discloser’s Confidential Information; or e) disclosed pursuant to a requirement of law or a court order, provided that the Recipient has provided the Discloser with reasonable opportunity and assistance to prevent or limit such disclosure. b) Permitted Uses and Disclosures During the term of this agreement, the parties may share Confidential Information with each other. The Recipient shall disclose Confidential Information only to those individuals who need access to the Confidential Information (“Representatives”). If any one or more Representatives of the Recipient disclose or use Confidential Information other than as authorized in this agreement, the Recipient will be liable to the Discloser for that disclosure or use to the same extent that it would have been had the Recipient disclosed or used that Confidential Information. c) Handling of Confidential Information The Recipient shall protect Confidential Information with at least the same degree of care that it uses to protect its own confidential information, which must be at least a reasonable degree of care. Upon the Discloser’s request, the Recipient shall promptly return or destroy any Confidential Information in its possession. The Recipient shall promptly notify the Discloser, in writing, of any unauthorized disclosure of the Confidential Information, and shall assist the Discloser in obtaining the return or destruction of such Confidential Information. d) Source of Data Licensee shall treat as Confidential Information the fact that it receives Data from Infutor, except in response to an inquiry from a consumer who is the subject of a particular record which includes Infutor Data.

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14. Insurance

For purchases of Products or Services via a product schedule or SOW, Licensee shall maintain the following insurance coverage:

1. Commercial general liability on an occurrence coverage form. The limits of liability must be at least:
   1. $1,000,000 each occurrence: premises and operations, personal and advertising injury, insured contract, products and completed operations, and independent contractors; and
   2. $2,000,000 general aggregate.
2. Cyber risk with limit of liability of at least $2,000,000 each claim. The cyber risk coverage must cover data breaches.

Licensee shall name Infutor as an additional insured in the commercial general liability policy. Upon request by Infutor, Licensee shall provide a certificate of insurance showing compliance with these insurance requirements.

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15. Notices

For a notice under this agreement to be valid, it must be in writing and delivered, all fees prepaid, to the address below a) by hand, b) by a national transportation company, or c) by registered or certified mail. A notice will be deemed to have been received by the party to which it is addressed if such party rejects delivery, or if the notice cannot be delivered because of a change of address for which no notice was given. A notice will become effective when it is received or deemed to have been received. For Infutor Data Solutions, LLC: c/o Infutor Legal Department One Lincoln Centre, 18W140 Butterfield Rd Suite 1020, Oakbrook Terrace, IL 60181

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16. Amendment

These terms may not be amended except by explicit agreement in an executed SOW or product schedule.

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17. Assignment

Infutor may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services, or assign the right to receive payments, without Licensee's consent. Licensee may not assign any of its rights or obligations under this agreement without the prior written consent of Infutor.

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18. Governing Law

This agreement is governed by the laws of the State of Illinois.

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19. Severability

The parties intend that if any term of this agreement is found by any court to be void or otherwise unenforceable, the remainder of this agreement will remain enforceable.

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20. Waiver

A failure by a party to enforce any provision of this agreement against the other party does not constitute a waiver of that provision. No waiver of any provision of this agreement is binding unless set forth in a writing that expressly states the waived provision and that is signed by the waiving party. No such waiver shall constitute a waiver of any other provision.

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21. End User Flowdown Terms

Licensee shall include these or substantially similar terms in its agreements with its customers:

1. Customer shall not provide Product access or Licensee Data to any third party other than a Data Service Provider.
2. Customer shall respond to all consumer inquiries about Customer’s use of Licensee Data. Customer shall not make marketing solicitations using Licensee Data to individuals who have requested not to receive such solicitations from Customer.
3. Customer shall adhere to all applicable laws and regulations relating to Customer’s use of Licensee’s Data.
4. Customer shall not use Licensee’s Data as the source for determination of consumer credit worthiness, consumer credit approval, or a consumer's eligibility for employment or insurance. Customer shall not use Licensee Data as the sole source in generating a consumer report as defined in 15 USC §1681a.
5. Customer shall maintain administrative, physical, and technical safeguards that are no less rigorous than accepted data industry practices in order to prevent the release of any PII to unauthorized parties.

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22. Data Service Provider Flowdown Terms

Licensee shall include these or substantially similar terms in its agreements with its Data Service Providers:

1. The Data Service Provider shall not use Infutor Data for any purpose other than to provide data services to Licensee.
2. The Data Service Provider shall not make copies of Infutor Data except to the extent necessary to perform data services for Licensee.
3. The Data Service Provider shall not provide Infutor Data to any entity other than Licensee.
4. The Data Service Provider shall delete all Infutor Data and any copies of Infutor Data immediately upon the completion of performing data services for Licensee.
5. The Data Service Provider shall treat Infutor Data as Confidential Information, which Licensee and Data Service Provider shall define substantially similarly to the confidentiality provisions of this agreement.