TERMS AND CONDITIONS
These Terms and Conditions supplement and are made a part of the Order Confirmation between Customer and Company as if fully set forth therein.
Customer acknowledges and agrees that the Order Confirmation and these Terms and Conditions constitute the entire agreement (the “Agreement”) between the parties regarding the data, records, lists and/or products described therein (the “Data”) and supersede all agreements and understandings, oral and written, with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made which is not embodied in these Terms and Conditions or in the Order Confirmation, and no party shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. Furthermore, handwritten information on the Order Confirmation will NOT be deemed to be a part of the Agreement between the parties. All Data supplied in conjunction with signed agreements are good for up to one (1) year after the date executed unless otherwise specified on the Order Confirmation. Note: all unused Data (records) after the said expiration period will not be accessible. Company strives to provide accurate lists above industry standards in accuracy. Company will replace data below 94% postal deliverability and 82% phone connection rate. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO REPRESENTATIONS OR WARRANTIES THAT EXTEND BEYOND THE FOREGOING.
NO LEGAL ADVICE; COMPLIANCE WITH APPLICABLE LAWS
Customer acknowledges and agrees that: (i) it is not relying any legal advice from Company in connection with the use of the Data and (ii) all Data which Customer receives under the Order Confirmation shall be used only in strict compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances, including but not limited to those concerning privacy, telephone solicitation, e-mail solicitation, fax broadcasts and direct marketing. Customer understands that any person violating such laws may be subject to civil and criminal penalties. Customer acknowledges and agrees that it is Customer’s sole responsibility to determine the applicability of any such laws, rules, regulations and ordinances. Without in any way limiting the generality of the foregoing, there shall be no responsibility or liability upon or of Company for determining whether phone numbers on its lists may be registered under federal and/or state “Do Not Call” laws or other laws governing telemarketers, and Customer shall be fully responsible for compliance therewith in connection with the use of Data rented hereunder. Customer represents and warrants that any and all actions taken by Customer shall be in compliance with the provisions of all applicable laws and regulations and that Company shall have no liability whatsoever for any actions done or performed, or caused to be done or performed by Customer, and Customer agrees to indemnify and hold Company harmless therefrom.
At all times Customer shall fully comply with all applicable federal, state and local laws or regulations affecting or arising from the Data rental pursuant hereto, including without limitation: (a) the Federal Fair Credit Reporting Act; (b) the Gramm, Leach, Bliley Privacy Act; (c) the Do-Not-Call Implementation Act of 2003; and (d) the Telephone Consumer Protection Act of 1991. Customer agrees to defend, indemnify and hold harmless Company, its subsidiaries and affiliates, and their respective officers, directors, agents, and employees against any loss, damage, expense, or cost, including reasonable attorneys’ fees (including allocated costs for in-house legal services) arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party based on: (i) any act or omission that constitutes a breach of any covenant, duty, representation, or warranty of Customer under this Agreement, and (ii) any claim that Company’s proper use of the Customer trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party. The provisions of this Agreement shall survive the expiration or termination of this Agreement.
USE OF EMAIL DATA
Customer agrees that any use of Data will be in compliance with all applicable state and federal laws, including the CAN-SPAM Act of 2003 and Customer’s own privacy policies. If Customer uses any Data to send e-mail messages, such compliance by Customer and its transferees must, at a minimum, include: (1) not using forged, false or misleading header information; (2) not using false or misleading subject lines; (3) including the sender’s physical address (not a P.O. box); (4) clearly identifying the e-mail message as an advertisement; (5) providing an opt-out notice with a functioning opt-out mechanism via e-mail or the Internet which is operational for at least 30 days after sending the message; (6) honoring opt-out notices within ten (10) business days of receipt of each opt-out request; and (7) for e-mail messages with sexually explicit material, including a warning in the subject line and requiring an additional step to view the material after opening the message. If Customer resells, shares, rents or transfers this Data, such compliance must, at a minimum, include prohibiting reselling, sharing, renting or transferring the e-mail addresses of recipients who have opt-ed out of receiving e-mail messages. CUSTOMER AGREES NOT TO SELL, SHARE, RENT OR TRANSFER THIS DATA TO OR WITH ANY PERSON OR ENTITY WHICH DOES NOT AGREE TO USE THIS DATA IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL LAWS, INCLUDING THE CAN-SPAM ACT OF 2003, AND WITH ITS OWN PRIVACY POLICIES. Customer agrees to indemnify Company, its clients, owners, officers, partners, members, managers, employees, agents, subsidiaries, and their respective successors and assigns, against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or related to Customer’s breach or alleged breach, or the breach or alleged breach of any person or entity to whom Customer may have sold the Data, of the promises and obligations herein. For email Data purchased from Company which Customer chooses to deploy themselves, Customer acknowledges that they understand some third party email deployment services do not permit you to deploy purchase email Data. It is highly recommended that Customer check with its internet service provider and its email deployment company before deploying any type of email advertisements, announcements, or other correspondence of any type regardless of its relationship with email recipients. Although Company endeavors to provide quality products and services, there shall be no liability or responsibility for the success of Customer’s email campaign due to factors beyond the reasonable control of Company including but not limited to: (a) tracking and quantifying the success of Customer’s campaign; (b) the look and feel of Customer’s creative; and (c) deployment strategies; etc. Due to these factors, it is recommended that Customer have Company deploy email campaigns to track bounces, open rates, click-through to website offers, etc.
USE OF DATA AND LISTS
Customer represents and warrants that: (i) he/she/it is a merchant as understood and defined in the Uniform Commercial Code of the State(s) in which it operates, (ii) the Data rented hereunder is to be used for a one-time use only, and (iii) no record in the Data, including without limitation names, addresses, etc., will be retained or duplicated. Additionally, Customer is strictly prohibited from using source or origination information regarding any rented Data as part of Customer’s telephonic presentation or printed mail piece, including without limitation disclosing the name, identity or contact information of Company. NO EXCEPTIONS.
The Data rented hereunder may be used by Customer for confidential use for a period not exceeding six (6) months from the date of rental to Customer. Without the prior written consent from Company, Customer shall not: (i) re-rent the Data or otherwise permit any use of the Data by or for the benefit of any party other than Customer; (ii) publish, distribute or permit disclosure of the Data, other than to employees and agents of the Customer on a need-to-know basis for use in Customer’s business; (iii) use or permit use of the Data for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third party; (iv) use or permit use of the Data for the generation of any statistical information which is sold, rented, published, furnished or in any manner provided to a third party; (v) use or permit use of the Data to prepare any comparison to other information databases, which is sold, rented, published, furnished or in any manner provided to a third party; or (vi) use or permit use of the Data in connection with individual credit, employment or insurance applications.
NO REFUNDS OR RETURNS
Customer acknowledges that all Data orders received from Customer require Company to create a custom product for Customer. Accordingly, Customer agrees that: (i) no returns of Data or reimbursements therefore will be made; (ii) Customer is responsible for the full payment of such custom order; and (iii) such financial responsibility shall not be released due to any of: (a) Customer rejecting said order, (b) refusing to accept shipment, (c) stopping payment on its check, (d) requesting its credit card company to charge back or reverse the transaction or (e) changing the nature of the order, etc.
DISCLAIMER AND WARRANTIES
All Data and other goods and services are provided ”AS IS” and all representations and warranties, express or implied, relating to any such goods or services, including their fitness for a particular purpose, their quality, their security, their merchantability or their non-infringement are hereby disclaimed. Due to the fact that Data products can be copied easily, no order will be returned or accepted for credit or otherwise unless first approved in writing. Customer further understands that although industry averages may be quoted by representatives from time to time, individual results vary. Accordingly, no guarantee whatsoever is given for any results from the use of products sold or services provided. In connection therewith, Customer acknowledges and agrees that the “Limitation of Liability” section below shall govern the rights of the parties hereto.
LIMITATION AND LIABILITY
Customer agrees, understands, and expressly acknowledges that: (i) when Company rents Data to any person or entity including Customer, Company neither assumes nor accepts any responsibility of any kind for defects, deficiencies, mistakes, ambiguities or inaccuracies of any kind or effect with respect to Data rented pursuant hereto; and (ii) while Company believes its information to be accurate, it does not, except as otherwise expressly provided in the Order Confirmation, warrant or guarantee any degree of accuracy of the Data rented, nor the outcome or results of any mailing or promotion or any other undertaking of Customer, and Company shall not be held liable in any manner with respect thereto. In all events, any liability hereunder or otherwise of Company and its representatives shall be limited to the amount paid by Customer for the applicable list and no more. Customer acknowledges and agrees that Company shall not be liable for indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business, loss of profits or investment or the like) whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if Company or its representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. The limitations of liability set forth herein are fundamental elements of the basis of the bargain between Company and Customer, and Customer acknowledges and agrees that Company would not, under any circumstances, provide its goods and services without such express limitations.
Company shall not be liable to Customer, or to anyone who may claim any right, due to the parties’ relationship, for any acts or omissions in the performance of said services on the part of Company or on the part of its agents, officers, directors or employees or assigns which result from the delivery of services made to Customer by Company and its agents, officers, directors, employees or assigns, unless said acts or omissions of Company or its agents, officers, directors, employees or assigns are due to gross negligence or willful misconduct. Customer agrees to reimburse Company, for all expenses, including reasonable attorneys’ fees incurred, to enforce the terms and conditions of this Agreement, collect payments due hereunder, and defend against claims or actions by any person or entity arising from Customer’s breach or alleged breach hereunder.
ARBITRATION, CLASS ACTION WAIVER AND GOVERNING LAW
Any dispute, controversy or claim arising out of or relating in any way to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach hereof, shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. In connection therewith: (a) In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach. (b) This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration. (c) THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO HAVE DISPUTES LITIGATED IN A COURT, TO A TRIAL BY JURY, AND ANY RIGHTS THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION IN ANY DISPUTE RELATING TO OR ARISING FROM THIS AGREEMENT. (d) The arbitration shall be conducted by one arbitrator. If the Parties are not able to agree upon the selection of an arbitrator, within twenty (20) days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association in accordance with the terms of this Agreement. (e) The arbitrator shall have ten (10) years of experience in contract dispute resolution and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration. (f) The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association. (g) The arbitration shall be conducted in Ventura County, California. (h) The laws of the State of California shall be applied in any arbitration proceedings (without regard to principles of conflict of laws) which shall be applied by the arbitrator in rendering a final decision. (i) It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award. (j) Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. (k) The Parties shall be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than one thousand (1,000) pages of documents and to take three (3) depositions not to exceed eight (8) hours for each such deposition. Any Party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition. In addition to the foregoing, any Party shall be entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable to testify at the hearing to preserve such witness’ testimony for the arbitration hearing. (l) The Parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness ten (10) days before the arbitration hearing. (m) The arbitrator shall have no authority to award punitive, consequential, special or indirect damages. The arbitrator shall not be entitled to issue injunctive and other equitable relief. The arbitrators shall award interest from the time of the breach to the time of award at the prejudgment interest rate under the California Civil Code. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to these arbitration provisions by bringing suit in any court of competent jurisdiction. These arbitration provisions shall survive the termination or cancellation of this Agreement. (n) Each party shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
No modifications of this Agreement may be made unless they are in writing and hand signed by a duly authorized officer of the party to be charged. Time is expressly declared to be the essence hereof, and it is specifically agreed that no waiver of any breach or default by Customer shall be deemed a waiver of any breach or default thereafter occurring.
For proper credit, please send the remittance form with payments. A finance charge of 1.5% per month shall be added to the balance due if the account is not paid within thirty (30) days from the invoice date.
ACCEPTANCE OF AN ORDER CONSTITUTES THESE TERMS AND CONDITIONS