Data Terms of Service

These terms and conditions are a legal agreement between you ("You" or "Client") and Rapleaf, Inc. ("Rapleaf," "We" or "Us"). By accepting these terms and/or using the Rapleaf "Email Verification API," "Personalization API," "Instant Data" service, or other Data Services we provide (collectively our "Data Services"), you represent that you have authority to bind the party being issued access to our Data Services, such as through a Passkey or Password (your "Account") and otherwise act on their behalf (you and any such party are collectively referred to as "You"). In exchange for use of and access to our Data Services and/or their technical specifications ("Specifications") you agree to be bound by these Data Services Terms and Conditions (this "Agreement"). This Agreement takes precedence over and supersedes any prior agreement, whether oral or written, express or implied, between the parties, including any non-disclosure or confidentiality agreement.

  1. Permission to Use
    1. You may use Rapleaf's Data Services and data you obtain from Us ("Data Services Data") only in accordance with the terms and conditions of this Agreement, whether those Data Services are accessed (in our sole discretion) by you in automated fashion through connection to a web service, or through human input of email addresses.
    2. You are responsible for any and all use of Data Services by your Account. You agree to pay all charges arising from such use, pursuant to these or supplemental terms of payment. You therefore agree not to share your Data Services Account password of passkey with any person who is not your agent or employee authorized to act on your behalf.
    3. Subject to the terms of this Agreement and at our sole discretion, You may conduct queries for age and gender data ("AG Queries"); while there is no current limit on such AG Queries, we reserve the right to impose one (whether on you or on all Data Services users), in our discretion. If you want to query other data categories, please email us at info@rapleaf.com. We will then provide you with a price list of further data. Any priced data you obtain from us, at a charge, will be covered by this Agreement, and subject to the same restrictions, along with further payment terms that both parties (We and You) must sign.
  2. Length of Use
    1. Your license does not allow you to store paid Data Services Data for more than twelve (12) months from the time you receive it and free Data Services Data for more than two (2) months from the time you receive it. You therefore agree to delete paid data received from Us within twelve (12) months of receiving it and free data received from Us within two (2) months of receiving it . We reserve the right to ask you to certify in writing that you have complied with this requirement, and if we do so, you agree to comply.
  3. Restrictions on Data You Receive From Us
    1. Resale Prohibited. The Data Services Data may be used solely for your own personal or internal business purposes. Except as otherwise permitted by Us in writing, You may not sell, lease, rent or except as otherwise set forth in this Agreement provide to any other party (i) the Data Services Data or a derivative of the Data Services Data, (ii) your own file, as enhanced with the Supplemental Data, or (iii) any direct marketing list, model, analysis, code, or report utilizing or derived from the Data. 
    2. If you wish to do any of the above, please contact us at info@rapleaf.com regarding how you may become a reseller or channel provider.
    3. Duty not to Interfere. You shall not interfere or attempt to interfere in any manner with the proper working of the Data Services.
    4. Use of Data Services Data in Online Cookies Prohibited. You may not use, and may not authorize any third party to use, any Data Services Data for purposes of online targeted advertising, such as in online cookies.
    5. Do Not "Guess." You may only provide us with information you believe to be true and accurate. If we believe that you are using our Data Services to "guess" or otherwise extract information, we will terminate your account(s) immediately.
    6. Restricted to Your Marketing Programs. The Data Services Data may solely be used for your marketing programs to consumers and businesses, including house file enhancements, mailing list screens, modeling and list analysis.
    7. Restricted Marketing Activities. Client shall not use any Data Services Data to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, weapons, or involving credit repair services.
    8. Communication Restrictions. All marketing communications used in connection with any list created by or for Client derived from the Data Services Data shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient's name and address; (ii) comply with all applicable federal and state laws, rules and regulations; and (iii) comply with all applicable privacy policies, ethical use and Information Practices published by the Direct Marketing Association ("DMA").
    9. Furnish of Materials. Client agrees to furnish Rapleaf, if requested, two (2) copies of each mail piece and/or telemarketing script using information derived from the Data Services Data. (This condition does not apply to use of our Email Verification API.)
    10. Further Third Party Restrictions. Client may not use the Data Services Data, in whole or in part, in the development of (i) any application that is outside the scope of this Agreement or (ii) any data products or services to be provided to third parties including, without limitation, any list enhancement data appending service or product.
    11. Rights of Suppliers. Rapleaf is obligated to comply with certain restrictions and requirements placed upon the use of the Data Services Data by the relevant data suppliers or licensors. Client shall strictly comply with all restrictions and requirements now or hereafter imposed upon Rapleaf by any Data Services Data Owner and made known to Client in writing.
    12. Information Safeguards. Client represents and warrants that, it has implemented and maintains an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity the nature and scope of its activities, and the sensitivity of any customer information at issue.
  4. Your Further Obligations
    1. Security. You agree to use reasonable efforts to keep Data Services Data in a secure environment at all times according to commonly acceptable security standards for enterprise data, and in an environment at least as secure as that in which you keep your own confidential or proprietary data.
    2. Compliance with Laws. In accepting and using the Data Services Data, you accept responsibility for complying with all applicable government laws, rules and regulations, and all third party rights. You will not submit customer data to us in a way that is inconsistent with any promises or representations you have made to your customers.
    3. Compliance with Fair Credit Reporting Act. Rapleaf is not a consumer-reporting agency ("Consumer Reporting Agency") as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA") and Data Services and reports do not constitute "Consumer Reports" as that term is defined in the FCRA. You agree to not use or provide the Data Services Data for any purposes enumerated in the FCRA in lieu of obtaining a Consumer Report.
      Specifically, you agree not to use or provide the Data Services Data, or authorize anyone else to use or provide the Data Services Data, for the following purposes:

      1. in connection with establishing a consumer's eligibility for credit or insurance to be used primarily for personal, family or household purposes, or in connection with assessing risks associated with existing credit obligations of a consumer;
      2. for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee;
      3. for any tenancy verification or in connection with any application to rent real property;
      4. in connection with a determination of a consumer's eligibility for a license or other benefit that depends on an applicant's financial responsibility or status;
      5. as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation;
      6. in connection with any information, service or product sold or delivered to a "Consumer" (as that term is defined in the FCRA) that constitutes or is derived in substantial part from a Consumer Report;
      7. for any other purpose covered under the FCRA; or
      8. for the preparation of a Consumer Report or in such a manner that may cause such data to be characterized as a Consumer Report. You agree not take any "Adverse Action" (as that term is defined in the FCRA), which is based in whole or in part on Data Services or data, against any Consumer.
    4. IF YOU COLLECT INFORMATION FROM YOUR USERS THROUGH ONLINE METHODS, YOU SHALL POST AND MAINTAIN A PRIVACY POLICY CONSISTENT WITH YOUR USE OF THE DATA SERVICES, THAT COMPLIES WITH APPLICABLE LAW AND SUFFICIENTLY DISCLOSES HOW YOU COLLECT AND SHARE USERS' DATA WITH THIRD PARTIES. PLEASE CONSULT AN ATTORNEY IF YOU ARE UNSURE HOW TO DISCLOSE THIS INFORMATION IN A LEGAL AND APPROPRIATE MANNER.
    5. Consumer Inquiries. You shall be responsible for accepting and responding to any communication initiated by a consumer ("Consumer Inquiries") arising out of your use of the Data Services Data. You agree to provide "in house" suppression to consumers upon request by a consumer from future marketlng initiatives by Client and you agree to honor any such request by suppressing such consumer information from your marketing solicitations. No reference to Rapleaf or other data owners in written or oral communications to a consumer or in scripts used by you in responding to Consumer Inquiries shall be made without Rapleaf's and the applicable data owner's prior written approval.
  5. PLEASE CAREFULLY REVIEW These Other Rights We Have, or That You Grant Us:  
    1. Monitoring. You agree that Rapleaf may monitor any Data Services activity to fulfill our obligations to you or under the law, or to ensure compliance with these terms.
    2. Our Rights to Use Submission Data. In full or partial consideration for our providing Data Services Data to you, We may maintain in Our database a copy of the email and postal addresses, or any other data, that you submit through the Data Services ("Submission Data"). You agree that we shall have the perpetual right to maintain, access, and use the Submission Data for our internal and commercial purposes, including for internal data indexing, data linkage, and data inferencing (including making inferences about a data subject's demographic data), in order to improve Rapleaf's products and services. We may also use aggregated Submission Data from to create and provide aggregated analysis (such as control sets) to our customers. If you do not wish to provide, or do not have the authority to grant the above permissions, please contact us at info@rapleaf.com, or inform your account representative, and we may (at our discretion) approve your request.
    3. Our Rights to Use and Share Instant Data. If you use our "Instant Data" cloud-based tool, we will also (in addition to other licenses and permissions herein), maintain and store your Submission Data for purposes of providing you access to Instant Data and its underlying functionality.
    4. Further Restrictions on Rapleaf. Notwithstanding the above, we agree never to use the Submission Data to send unsolicited email or postal email to your customers, or to provide or disclose the Submission Data to any third party (except for contractors operating under our direction, who have signed non-disclosure agreements). We will never disclose to a third party (except for contractors operating under our direction, who have signed non-disclosure agreements) the existence of a customer relationship between you and your customer.
    5. We May Disclose Our Relationship With You for Our Marketing Purposes. You agree that we may use your company's name to identify your company as a customer of Rapleaf, for our own marketing and/or promotional purposes.
    6. Our Marks and Logos. Using the Data Services doesn't give you permission to use any Rapleaf trademark, brand or logos. If you'd like to, please email us at info@rapleaf.com.
    7. Experimental Data Services. The availability of the Data Services, and the terms upon which it is available, are continually under experimentation and development. You acknowledge and agree that this Agreement does not create any estoppel, or other right to rely upon continued Data Services access, and you hereby waive, and agree not to assert, any such claims against Rapleaf under contract law or any other legal theory.
    8. No Continued Access or Standard. We may suspend or terminate your access to the Data Services, or change any of the Data Services Terms, Licenses, Specifications, Protocols or Methods of Access for any or no reason and will bear no liability for such decisions. It is solely your responsibility at all times to back-up your data and to be prepared to manage your accounts and conduct your business without access to the Data Services.
    9. No Service Level. RAPLEAF DOES NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE DATA SERVICES WILL BE AVAILABLE WITHOUT INTERRUPTION OR WITHOUT BUGS.
    10. Our Proprietary Rights and Your Limited License Rights
. The Data Services and Data Services Data are the intellectual property and proprietary information of Rapleaf and our licensors. Except as expressly granted herein, this Agreement does not grant either party any intellectual property or other proprietary rights. You hereby release and covenant not to sue Rapleaf and its corporate affiliates and any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments, and claims (a) pertaining to any intellectual property you develop that is based on, uses, or relates to the Data Services; or (b) which otherwise may arise in connection with your use of, reliance on, or reference to the Data Services Data.
      Rapleaf grants you a nonexclusive, non-transferable, non-sublicensable, revocable, limited license to install and use the object code we make available with the Data Services on any computer that you own or control. You may not charge any third party for using the Data Services, and you may not modify, adapt, reverse engineer (except as otherwise permitted by applicable law notwithstanding such limitation), decompile or attempt to discover the source code of the Data Services, or create any derivative works of the Data Services, or otherwise use the Data Services except as expressly provided in this Agreement.
    11. Rapleaf reserves the right to review and pre-approve the Client's intended use of the DATA SERVICES Data prior to Rapleaf's acceptance of an order.
  6. The Parties' Additional Respective Legal Rights
    1. Indemnification. You shall indemnify, defend and hold Rapleaf, its agents, affiliates, and licensors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals), arising out of or in connection with any claim, action or proceeding (any and all of which are "Losses") arising out of or related to any act or omission by you in using the Data Services, or relating to the development, operation, maintenance, use and contents of the Data Services or Data Services Data, including but not limited to any infringement of any third-party proprietary rights. At Rapleaf's option, you shall assume control of the defense and settlement of any Loss subject to indemnification by you (provided that, in such event, Rapleaf may at any time thereafter elect to take over control of the defense and settlement of any such Loss, and in any event, you shall not settle any such Loss without Rapleaf's prior written consent).
    2. Termination. Any licenses in this Agreement will terminate automatically without notice if you violate any provision of this Agreement. Rapleaf may terminate this Agreement or discontinue the Data Services or any portion or feature thereof for any or no reason and at any time without liability to you.
    3. Modification. Rapleaf may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting the change to this web page, posting a notice to your account, emailing to the email address of your account or otherwise notifying you. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AND STOP USING THE DATA SERVICES. YOUR CONTINUED USE OF THE DATA SERVICES FOLLOWING A POSTING OR NOTIFICATION OF A CHANGE AS DESCRIBED ABOVE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
    4. Disclaimer and Limitation of Liability. The Data Services Data may be subject to transcription and transmission errors, accordingly, the Data Services Data is provided on an "as is," "as available" basis. Any use or reliance upon the Data Services Data by Client shall be at its own risk. EXCEPT AS SET FORTH IN THIS SECTION, NEITHER RAPLEAF NOR ANY DATA OWNER MAKES, AND EACH DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER WITH RESPECT TO THE SERVICES, SUPPLEMENTAL DATA, OR THE MEDIA ON WHICH THE DATA SERVICES DATA IS PROVIDED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RAPLEAF'S AND THE DATA OWNER'S AGGREGATE LIABILITY TO END USER, WHETHER FOR NEGLIGENCE, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE PRICE PAID FOR THE SUPPLEMENTAL DATA OR SERVICES TO WHICH THE INCIDENT RELATES. IN NO EVENT SHALL COMPANY OR SUPPLEMENTAL DATA OWNER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.
    5. Injunctive Relief. You agree that the limitations and restrictions in this Agreement are necessary and reasonable to protect Rapleaf, and that monetary damages may not be a sufficient remedy for breach of this Agreement. You therefore agree not to assert, with respect to an action or motion of Rapleaf for injunctive relief with respect to such breach, that monetary damages would be sufficient remedy for such a breach. You agree that Rapleaf will be entitled to seek temporary and permanent injunctive relief against any threatened violation of such limitations or restrictions or the continuation of any such violation in any court of competent jurisdiction, without having to prove actual damages.
    6. Construction of These Terms. This Agreement is governed by California law except for its conflicts of laws principles and must be adjudicated in San Francisco County, California. This is the entire agreement between the parties with respect to its subject matter. This Agreement is entered into solely to benefit You and Rapleaf: there are no third party beneficiaries to it. 
Any conflicting or additional terms contained in additional documents or oral discussions are void (except for written agreement signed by both parties).
      You may not assign any of your rights hereunder and any such attempt is void. Rapleaf may assign this agreement to a successor by way of merger, consolidation, or sale of all or substantially all of its assets to an entity that assumes the business activities that are the subject of this Agreement.
      You and Rapleaf are not legal partners or agents, but are independent contractors.

 

TERMS AND CONDITIONS APPLICABLE TO CHANNEL PROVIDERS OF OUR DATA SERVICES

  1. Appointment of CHANNEL PARTNER
    1. We may appoint you, through a further writing, as a non-exclusive, authorized CHANNEL PARTNER of our DATA SERVICES, as described in the accompanying "Data Services Terms and Conditions." If we do so, these terms will apply. As a CHANNEL PARTNER, you shall be granted a non-exclusive, nontransferable, world-wide, license to access, use and market the Data Services during the term of this Agreement, solely as subject to the terms of this Agreement.
  2. Term and Termination
    1. If we appoint you as a CHANNEL PARTNER, the initial term of this Agreement (the "Initial Term") shall commence on the date the appointment is made and continue for a period of twelve (12) consecutive months. The Agreement shall then automatically renew for an additional twelve (12) month period (each an "Additional Term") unless both parties mutually agree in writing to expire this Agreement. The Initial Term and any Additional Term(s) shall be the "Term."
    2. Either Party may terminate this Agreement (a) for any reason or for no reason, effective upon at least thirty (30) days prior written notice to the other party, or (b) for cause immediately by written notice: (i) if the other ceases to do business, or otherwise terminates its business operations, becomes insolvent, seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within thirty (30) days); or (ii) if the other materially breaches any material provision of this Agreement and fails to cure substantially such breach within thirty (30) days of receipt of written notice describing the breach.
  3. Restrictions Upon Use of Data
    1. CHANNEL PARTNER shall not store or maintain the Append Data except as reasonably needed to provide Data Services to its customers.
    2. CHANNEL PARTNER may only resell or otherwise make available to a particular client an instance of the Data Services by first accessing and obtaining it through the Personalization API. CHANNEL PARTNER may not, for instance (without limitation) cache or store an element of data it has previously obtained from the Personalization API for the purpose of reselling that cached data element to a successive party. For avoidance of doubt, CHANNEL PARTNER may not make available to a "Client B" a unique data element initially obtained through a Matched Query for a "Client A," except that it may make available to a "Client B" that same unique data element by submitting an additional query to the Personalization API, and thus incurring an additional fee for such Matched Query.
    3. Subject to Section 3(b), CHANNEL PARTNER may cache or store a data element for twelve (12) months, after which time it must purge such Data Services from its servers and filesand CHANNEL PARTNER's licenses, rights and permissions to such Data Services shall terminate except that solely to the extent that CHANNEL PARTNER has been engaged to host or store the Data Services on behalf of a Client who is the end user of the Data Services, it shall not be required to purge such Data Services, but shall be permitted to maintain that Data Services solely to permit its Client to access that Data Services. CHANNEL PARTNER shall, upon Rapleaf's request, certify in writing that it has done so, and that it no longer has any Data Services in its possession or under its control.
    4. CHANNEL PARTNER shall not perform any data linkage, matching, or other process designed to lead to the derivation of data elements that correlate, link or match to the Data Services.
    5. CHANNEL PARTNER shall not and shall not authorize or contract with any third party to resell, lease, assign, rent, sublicense, distribute, transfer, disclose, time-share, or otherwise Share the Data Services for any purposes other than providing the Data Services to a Client.
    6. CHANNEL PARTNER shall not, and shall not authorize or contract with any third party to use the Data Services to append online data, such as in the delivery of cookies or other online advertising.
  4. Further Obligations of the CHANNEL PARTNER. CHANNEL PARTNER shall be responsible for:
    1. Client-Facing Services: It is CHANNEL PARTNER's role to provide all customer service and support to its Clients. Rapleaf shall have no responsibility for support or contact with CHANNEL PARTNER's Clients. However Rapleaf will provide support and consulting to CHANNEL PARTNER as necessary to effectuate this Agreement.
    2. Client Agreement: CHANNEL PARTNER shall execute a written agreement with each Client having provisions at least as protective of Rapleaf's rights as this Agreement ("Client Agreement"), including the provisions in the immediately BELOW language. At Rapleaf's request, CHANNEL PARTNER will provide Rapleaf with a copy of the relevant portion of the Client Agreement to verify compliance herewith:"'[Client],' shall refer collectively to Client or, if Client is an agent for another individual entity, such other individual entity on whose behalf Client has been specifically retained to provide services. 'Client' shall also refer to Client's employees, agents, contractors, service providers, hired marketers and consultants, shall access and use the Products only for its own internal, proprietary purposes.[Client] shall limit access to the [Data Services or products/services containing Data Services] to its own employees, agents, contractors, service providers, hired marketers and consultants strictly with a "need-to-know," provided, however, that such parties have executed an agreement with the [Client] with confidentiality provisions at least as restrictive as those contained herein. [Client] shall immediately notify [CHANNEL PARTNER] upon learning of any breach of these confidentiality provisions."
  5. Payment and Execution of Services
    1. CHANNEL PARTNER may seek to contract in writing with Rapleaf for paid data, in addition to the age and gender data provided at no charge. Additional payment terms and other conditions will apply and shall be agreed upon in writing, as to such other, additional data.
    2. Rapleaf will invoice CHANNEL PARTNER each month for the prior month's usage. CHANNEL PARTNER's payment will be due in United States currency upon the receipt of Rapleaf's invoice. CHANNEL PARTNER will ensure that the contact and credit card or other payment information provided to Rapleaf for billing purposes is up-to-date and accurate. Any balance unpaid after thirty (30) days will accrue interest at the lesser of one and one-half percent (1½ %) for each month or fraction thereof that the invoice is overdue or the maximum rate allowed by applicable law. CHANNEL PARTNER shall notify Rapleaf in the event of any dispute regarding any invoiced amounts within fifteen (15) days of receipt of the invoice.
    3. Notwithstanding anything to the contrary in this Agreement, Rapleaf may withhold provision of the Data Services or the Services in its sole discretion and if CHANNEL PARTNER fails to pay an undisputed monthly invoice when due or unreasonably disputes any invoiced amount.
  6. PLEASE CAREFULLY REVIEW THE BELOW Proprietary Rights, and Licenses You are Granting To Us
    1. Title to and ownership of all data, customer records, information, systems, software, code, documentation, tools, utilities, methodologies, specifications, techniques and other materials and know-how owned by a Party or its licensors or in the possession of such Party or licensor prior to the Effective Date, or developed by a Party or licensor after the Effective Date without the use of the other Party's proprietary information (together with the intellectual property rights therein), shall remain with such Party/licensor.
    2. The Services and all information, technology and data that are offered through this Agreement shall remain the exclusive property of Rapleaf and its licensors ("Rapleaf IP"). CHANNEL PARTNER shall immediately notify Rapleaf of any breach or suspected breach by CHANNEL PARTNER's Client or any third party of the confidential nature of the Rapleaf IP.
    3. You are granting us certain rights to use and share the data you submit to us ("Submission Data"), as follows. In full or partial consideration for our providing Data Services Data to you, We may maintain in Our database a copy of the email and postal addresses, or any other data, that you submit through the Data Services ("Submission Data"). You agree that we shall have the perpetual right to maintain, access, and use the Submission Data for our internal and commercial purposes, including for internal data indexing, data linkage, and data inferencing (including making inferences about a data subject's demographic data), in order to improve Rapleaf's products and services. We may also use aggregated Submission Data from to create and provide aggregated analysis (such as control sets) to our customers. If you do not wish to provide, or do not have the authority to grant the above permissions, please contact us at info@rapleaf.com, or inform your account representative, and we may (at our discretion) approve your request.
  7. Instant Data.  If you use Rapleaf's "Instant Data" cloud-based tool, we will also (in addition to other licenses and permissions herein), maintain and store your Submission Data for purposes of providing you access to Instant Data and its underlying functionality.
  8. Warranties. Each Party represents that the person signing this Agreement on its behalf is authorized to enter into this Agreement. Each Party agrees that it shall: (a) abide by all applicable laws and regulations in the performance of this Agreement; and (b) abide by all applicable privacy and ethical rules and policies published by the Direct Marketing Association.
  9. Indemnification
    1. Each Party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and such other Party's officers, directors, employees and agents (each an "Indemnified Party") from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) as a result of a third party claim (collectively a "Claim") incurred by an Indemnified Party arising out of or in connection with the Indemnifying Party's breach of any representations, warranties or obligations set forth in this Agreement.
    2. Rapleaf shall indemnify, defend and hold harmless the CHANNEL PARTNER Indemnified Parties from and against any third party Claims for alleged infringement of any patents, trademarks or copyrights, or violation of any third party's rights or this Agreement, relating to any Data Services. Should the Data Services or any part thereof become, or in Rapleaf's opinion, be likely to become, the subject of a Claim of infringement, Rapleaf may, at its option and expense, either procure for CHANNEL PARTNER and/or the Client, as applicable, the right to continue using the Services or replace or modify the Services provided hereunder so as to make them non‑infringing. In the event replacement or modification is not possible, CHANNEL PARTNER may receive a pro rata refund of the fees paid to Rapleaf with respect to the particular Services which are the subject of such Claim, prorated over the useful life of the Services. The above indemnification obligations shall not apply in the event that CHANNEL PARTNER has (a) used the Data Services in violation of this Agreement, (b) used the Data Services in combination with other data or service, where such claim is based (in whole or in part) on such other data or on such combination, or (c) independent of any action taken by Rapleaf, used the Data Services in violation of any law or any third party's rights.
    3. CHANNEL PARTNER shall indemnify, defend, and hold harmless Rapleaf from and against Claims arising out of or in connection with: (i) CHANNEL PARTNER's failure to include any terms and/or conditions in the Client Agreement as required in this Agreement; (ii) breach by CHANNEL PARTNER's agents, contractors, distributors or customers of any agreement to which such party is bound that is entered into pursuant to the requirements of this Agreement, (iii) CHANNEL PARTNER's modification of the Data Services or combination of the Rapleaf with any other service, whereby such resulting modification or combination violates any applicable law or infringes the copyright, trade secret or other right of any third party, or (iv) CHANNEL PARTNER's use of the Data Services in violation of any law or any third party's rights, where such violation is independent of any action taken by Rapleaf.
    4. Each Indemnifying Party's obligations herein are contingent upon the Indemnified Party promptly notifying the Indemnifying Party in writing of the claim and promptly tendering the control of the defense and settlement of any such claim to the Indemnifying Party at the Indemnifying Party's expense and with the Indemnifying Party's reasonable choice of counsel. The Indemnified Party shall also cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling such claim and the Indemnified Party may join in defense with counsel of its choice at its own expense.
  10. Limited Warranty; Limitations on Damages. EXCEPT AS PROVIDED HEREIN, THE SERVICES DESCRIBED HEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY STATED HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AS TO ANY RESULTS TO BE OBTAINED FROM USE OF THE DATA PROVIDED HEREIN. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, OR LOSSES FROM INTERRUPTION OR TERMINATION INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT. EXCEPT PURSUANT TO A PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY'S AGGREGATE OR CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL EXCEED THE AGGREGATE OF MONIES PAYABLE BY CHANNEL PARTNER OVER THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
  11. Fair Credit Reporting Act. Rapleaf is not a consumer-reporting agency ("Consumer Reporting Agency") as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA") and Data Services and reports do not constitute "Consumer Reports" as that term is defined in the FCRA. You agree to not use or provide the Data Services Data for any purposes enumerated in the FCRA in lieu of obtaining a Consumer Report. Specifically, you agree not to use or provide the Data Services Data, or authorize anyone else to use or provide the Data Services Data, for the following purposes:
    1. in connection with establishing a consumer's eligibility for credit or insurance to be used primarily for personal, family or household purposes, or in connection with assessing risks associated with existing credit obligations of a consumer;
    2. for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee;
    3. for any tenancy verification or in connection with any application to rent real property;
    4. in connection with a determination of a consumer's eligibility for a license or other benefit that depends on an applicant's financial responsibility or status;
    5. as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation;
    6. in connection with any information, service or product sold or delivered to a "Consumer" (as that term is defined in the FCRA) that constitutes or is derived in substantial part from a Consumer Report;
    7. for any other purpose covered under the FCRA; or
    8. for the preparation of a Consumer Report or in such a manner that may cause such data to be characterized as a Consumer Report. You agree not take any "Adverse Action" (as that term is defined in the FCRA), which is based in whole or in part on Data Services or data, against any Consumer.
  12. General
    1. Audit; Records. CHANNEL PARTNER shall maintain complete and accurate records to support and document the amounts owed and the Data Services sold under this Agreement and shall retain such records for one (1) year after termination or expiration of the Agreement. CHANNEL PARTNER shall upon written request of Rapleaf provide audit access to such records to Rapleaf. Such access shall occur at the offices of the CHANNEL PARTNER, upon ten (10) days' written notice, and in a manner that shall not disturb the ongoing business operations of the CHANNEL PARTNER. If any such audit shall disclose a material shortfall or surplus in payment, or any violation of Sections 3 (Restrictions Upon Use of Data) or 4 (Further Obligations of the CHANNEL PARTNER) of this Agreement, then the amount of any such shortfall or surplus shall be included in or deducted from the next periodic payment made hereunder, and the CHANNEL PARTNER shall pay all reasonable costs of the audit.
    2. Assignment. Neither Party shall assign, sublicense or transfer its rights and/or obligations under this Agreement, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided however that either Party may assign this Agreement upon notice but without the other party's consent to: (i) an affiliated entity; (ii) a successor in interest whether by merger, reorganization or otherwise; or (iii) a purchaser of more than fifty percent (50%) of its assets.
    3. Construction and Modification of Agreement. If any part of this Agreement is held invalid or unenforceable, the Agreement will be enforced to the maximum extent permitted by law, and the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any written or oral prior or contemporaneous agreements and understandings between the Parties. This Agreement may not be modified or amended without the express written consent of each of the Parties hereto.
    4. Relationship of Parties. The Parties to this Agreement are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the Parties. Neither Party has the authority to bind the other or incur any obligation on its behalf.
    5. Taxes. CHANNEL PARTNER shall bear all responsibility for collecting, remitting and otherwise paying taxes (as applicable) arising from its resale of the Data Services.
    6. No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties hereto. There are no third party beneficiaries to this Agreement.
    7. Force Majeure. The Parties will not be deemed in breach of this Agreement on account of a delay or failure to perform as required by this Agreement as a result of conditions beyond such Party's reasonable control, and that such Party is unable to overcome through the exercise of commercially reasonable diligence. The Parties' obligations to one another shall be excused and/or postponed during and only for the duration of the applicable force majeure event.
    8. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to conflict of laws principles. Any dispute shall be exclusively resolved by submission to final, binding arbitration, before a single arbitrator, pursuant to the rules and procedures of the American Arbitration Association, in San Francisco, California.