(a) “Acquisition” has the meaning set forth on the Invoice.
(b) “Agreement” shall mean these Terms and Conditions together with the Invoice.
(c) “Client” has the meaning set forth on the Invoice.
(d) “Client Website” means the Internet page at the URL provided by Client to DigDev Direct for inclusion in the Copy.
(e) “Confidential Information” means any non-public information provided by one party to the other during the Term. For purposes of this Agreement, Confidential Information shall not include information the receiving party can document: (i) was or has become readily available to the public without restriction through no fault of the receiving party, its employees, or its agents; (ii) was received without restriction from a third party lawfully entitled to possess and disclose such information; (iii) was rightfully in possession of the receiving party without restriction prior to the other party’s disclosure of such information to the receiving party; or (iv) was disclosed pursuant to the written consent of the other party.
(f) “Copy” means the content of the advertisement that Client provides to DigDev Direct for email broadcast hereunder.
(g) “CPM” means Cost Per Thousand e-mails sent.
(h) “CPC” means Cost Per Click.
(i) “Invoice” means the DigDev Direct invoice signed by Client, and specifically incorporating these Terms and Conditions therein.
(j) “Opt-In Email Recipient” means a person that has consented to receive promotional information about products and services via e-mail by subscribing at an DigDev Direct or an DigDev Direct affiliate Internet website.
(k) “Privacy Header” means a notice to recipients of the Copy that informs the recipient: (i) of the location of such recipient’s subscription to DigDev Direct’s or DigDev Direct’s affiliate’s opt-in database; and (ii) of an electronic method by which such recipient can unsubscribe from future broadcasts. The Privacy Header shall also include a mechanism by which recipients may electronically communicate to DigDev Direct the desire to unsubscribe.
This Agreement shall become effective on the date that Client signs the Invoice and, unless otherwise stated on the Invoice, shall continue in effect for six (6) months.
3. Copy Delivery and Approval.
Copy Delivery and Approval. Advertiser must deliver to DigDev Direct , (“DigDev Direct “) the content of the advertisement Advertiser is contracting DigDev Direct to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to DigDev Direct ‘s approval. DigDev Direct reserves the right to reject any Copy that advertises or promotes any product or service involving illegal activity, illegal products, illegal product paraphernalia, sexual paraphernalia, adult films or other media, gambling, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. By reserving this right, DigDev Direct shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy. Further, no Pop Up’s or Pop Unders may be launched by Advertiser form any hypertext link or URL, which emanates from any Copy.
DigDev Direct shall deliver an e-mail message to Opt-In Email Recipients on behalf of Client. Such e-mail message shall contain the Copy, including a tracking URL that links to the Client Website, and a Privacy Header. DigDev Direct shall remove recipients that have communicated a desire to unsubscribe from DigDev Direct’s database of Opt-In Email Recipients. Except as otherwise expressly provided in the Invoice, the timing and frequency of the Client broadcasts, as well as the number and selection of the Opt-In Email Recipients that will receive such broadcasts, shall be at DigDev Direct’s sole discretion.
5. Tracking and Reporting.
Except as otherwise expressly provided in the Invoice, Client shall provide to DigDev Direct a monthly report, certified by signature of an officer of Client, detailing the number of Acquisitions. Client shall keep, in its usual place of business, books of accounts and other documents relating to its receipt and fulfillment of Acquisitions that may be necessary or proper to conveniently ascertain the amounts payable to DigDev Direct under the terms of this Agreement. Client shall permit an DigDev Direct authorized representative to inspect such books of accounts and other documents during regular business hours upon ten (10) days’ notice from DigDev Direct. Such inspection shall be at DigDev Direct’s sole expense, unless the inspection reveals that the amounts due DigDev Direct exceed the amounts actually reported as due by Client (“Discrepancy”) by five percent (5%) or more, in which case Client shall pay to DigDev Direct the costs of the inspection revealing the Discrepancy. For any Discrepancy, Client shall pay to DigDev Direct the full amount of the underpayment, together with interest thereon at the rate of eighteen percent (18%) per annum.
6. Unjust Enrichment; Liquidated Damages.
Client agrees that it shall seek to benefit from the Client broadcast only: (a) to increase exposure of the Client Website, the products and/or services advertised in the Copy, and Client’s marks; and (b) to generate Acquisitions. Accordingly, Client warrants that during the Term of this Agreement, the Client Website shall not contain popup windows, banner or other advertisements, sweepstakes registration boxes, newsletter subscription boxes, phone numbers, hyperlink(s) to a web page containing any of the foregoing, or any other method of gathering e-mail addresses or generating sales (that do not qualify as Acquisitions hereunder) from recipients of the Client broadcast. Client agrees that should Client breach this warranty, DigDev Direct may, in its sole discretion, impose liquidated damages on Client in the amount of twenty-four cents ($.24), or if less, DigDev Direct’s then current undiscounted broadcast rate for each Opt-In Email Recipient to which DigDev Direct broadcasts under this Agreement. Such liquidated damages shall be instead of any fees payable under this Agreement.
7. Maintenance of the Client Website.
Client shall make a good faith effort to ensure the Client Website remains fully operational and accessible to recipients of the Client broadcasts during the Term of this Agreement. Further, during the Term of this Agreement, Client shall make no changes to the Client Website or to the products and services offered on the Client Website that would likely result in a reduction of compensation payable to DigDev Direct hereunder without DigDev Direct’s express prior written consent.
8. Hardware, Software, and Database.
DigDev Direct shall obtain and maintain the computer hardware and software necessary to perform its obligations under this Agreement. Such hardware and software will not be dedicated hardware and software. Nothing in this Agreement shall grant to Client any right, title, or interest in or to DigDev Direct’s hardware, software, or Opt-In Email Recipient database.
Client shall pay to DigDev Direct a fee as set forth in the Invoice. Unless otherwise specified in the Invoice, Client shall pay each invoice in full within thirty (30) days of receipt. If Client fails to timely pay the full amount of the charges detailed in any DigDev Direct invoice as set forth herein, Client agrees to pay all of DigDev Direct’s costs of collection of such charges, including without limitation DigDev Direct’s reasonable attorneys’ fees, and Client agrees to pay interest on the amount of underpayment/nonpayment at the rate of eighteen percent (18%) per annum.
10. Indemnification by Client.
Client shall indemnify, defend, and hold harmless DigDev Direct from and against any and all third party claims, suits, and liabilities (including all reasonable costs, expenses, and attorneys’ fees actually paid) arising from or in connection with: (a) the products and/or services offered/advertised on the Client Website; (b) the content of the Copy; (c) the content of the Client website; or (d) Client’s breach of any of its obligations, representations, or warranties under this Agreement. DigDev Direct shall promptly notify Client in writing of all such claims and shall accommodate Client’s reasonable requests for cooperation and information. DigDev Direct shall agree to Client’s sole control over the defense and any settlement of such claims.
11. Indemnification by DigDev Direct.
Except for claims indemnified by Client pursuant to Section 10 above, DigDev Direct shall indemnify, defend, and hold harmless Client from and against any and all third party claims, suits, or liabilities (including all reasonable costs, expenses, and attorneys’ fees actually paid) arising from or in connection with: (a) DigDev Direct’s fulfillment of the Client broadcasts; or (b) DigDev Direct’s breach of any of its obligations, representations, or warranties under this Agreement. Client shall promptly notify DigDev Direct in writing of all such claims and shall accommodate DigDev Direct’s reasonable requests for cooperation and information. Client shall agree to DigDev Direct’s sole control over the defense and any settlement of such claims.
12. No Other Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DigDev Direct MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE EMAIL BROADCASTS. DigDev Direct DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW, OR IN EQUITY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
13. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE LOSS, DAMAGE, OR EXPENSE (INCLUDING LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR LIQUIDATED DAMAGES UNDER SECTION 6 AND INTEREST OR COLLECTION COSTS UNDER SECTION 9 OF THESE TERMS AND CONDITIONS, THE LIMIT OF EITHER PARTY’S LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAYABLE TO DigDev Direct UNDER THIS AGREEMENT.
14. Force Majeure.
Neither party shall be liable for delays or nonperformance of this Agreement if such delay or nonperformance was caused by: (a) act of God, act of war, strike, fire, natural disaster, or accident; (b) lack of availability of materials, fuel, or utilities; or (c) any other cause beyond such party’s control.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
16. Relation of the Parties.
The parties are independent contractors. There is no partnership, agency, or joint venture relationship between them.
For a period of three (3) years, beginning on the date client signs the Invoice, each party will keep strictly confidential all Confidential Information disclosed by the other party, except to the extent an applicable governmental law, order, decree, regulation, rule, or process requires disclosure. In the event of such required disclosure, the receiving party shall provide written notice thereof to the disclosing party as soon as reasonably possible, and shall reasonably cooperate with the disclosing party in resisting the disclosure of or obtaining confidential treatment for such Confidential Information.
18. Applicable Law, Jurisdiction, and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to principles of conflict of laws. The exclusive jurisdiction and venue for any proceeding brought pursuant to this Agreement shall be Broward County, Florida.
19. Entire Agreement.
Except as expressly modified or supplemented by a writing executed by both parties on or after Client signs the Invoice, the provisions of these Terms and Conditions and the Invoice are the only representations, warranties, and understandings between the parties with respect to the products and/or services described in this Agreement. The waiver of any breach or default will not constitute a waiver of any other right or of any subsequent breach or default.
Should any provision of this Agreement be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from this Agreement without affecting the validity or enforceability of any other provision.
The headings and captions in these Terms and Conditions are for convenience only and are not to be used to construe the meaning of the provisions of these Terms and Conditions.
1. Eligibility and Consent to Receive SMS, MMS, WAP Push or other similar remote messaging service and E-Mail Marketing Messages to your Mobile Device: You must be eighteen or over to register at this site and use our services (including but not limited to SMS alerts and messages). By using and/or viewing this site and services, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of its terms and conditions and that you are at least 18-years old and are in full compliance with applicable law and third party agreements including, but not limited to, agreements between you and your cell phone services provider.
You hereby consent:
For us (and/or our service providers) to send to you at the SMS and e-mail addresses you provide to us in the signup process, and from time to time via other methods, content and/or “alerts” via SMS and/or MMS, WAP Push or other similar remote messaging service and email messages (also referred to collectively as “electronic messages”) to your cell phone, mobile device, or other computing device;
For us to send to you at the SMS and e-mail addresses you provide to us in the signup process, and from time to time via other methods, advertising (including advertisements provided by third parties) via electronic messages to your cell phone, mobile device, or other computing device;
For us to use third parties to send you advertisements and content (including but not limited to alerts) via electronic messages;
For us to obtain, store, and analyze your name, address, telephone number, SMS address, e-mail address, and other data you provide to us from time to time in the course of us providing services to you including, but not limited to, content selections, clickstream, and transaction history (all such data referred to herein as “profile data”) and to use the above “profile data” to send you targeted advertising electronic messages;
After opting or participating in any campaign , you may OPT-OUT at ANY TIME with no restrictions and be removed from our database by texting STOP to the Short Code;
You hereby agree:
That you are aware that standard and special text messaging rates may apply and that you shall be fully responsible for the costs to your cell phone provider or other network services provider or phone COMPANY for all the electronic messages (including, but not limited to, SMS message costs) sent to you by us or our service providers;
To make certain that minors (under applicable law) do not have access to your cell phone or other computing device in which you receive electronic messages from us or our service providers and that minors do not have access to electronic messages sent by us or our service providers;
After opting or participating in any campaign , you may OPT-OUT at ANY TIME with no restrictions and be removed from our database by texting STOP to the Short Code;
You hereby warrant:
That by entering into this agreement that you are not in violation with your cell phone service provider’s agreements or any third party agreement covering such cell phone or other computing device or e-mail address or SMS address in which you will receive electronic messages from us;
That by entering into this agreement that you are not in violation with applicable law;
That you have not and will not, during the term of this agreement, list your SMS address or E-Mail address on any “opt-out” registry and to the extent such address(es) are or become listed with a registry you hereby further warrant that such addresses were listed without your consent and you shall take immediate steps to remove such address(es) from such registry(s) and you agree to having us send you electronic messages – this provision shall only be enforceable to the fullest extent permitted by law;
That you have not and will not order any services from us or request any electronic messages that violate applicable law;
That you have not and will not purchase any products or services from electronic messages sent to you by us or our service providers that violate applicable law;
That any information you have provided to us in registering for services from us or that you provide to us from time to time is truthful and accurate and that you hereby warrant that any and all data you provide to us is your own and that you have not registered another person’s SMS number or e-mail address or have electronic messages set or transferred to go to another person’s cell phone, device or address as the case may be.
After opting or participating in any campaign , you may OPT-OUT at ANY TIME with no restrictions and be removed from our database by texting STOP to the Short Code;
2. Fees/Termination: COMPANY’s, usage and/or subscription fees – if any – were provided to you upon registration and may change from time to time upon electronic notice to you. COMPANY reserves the right to terminate your access to its services or site at any time for any reason or no reason. COMPANY may terminate your services upon sending notice to you at the email or SMS address you provide in your application for services or such other email or SMS address as you may later provide to us. If COMPANY terminates your services because you have breached this Agreement, you will not be entitled to any refund of any unused subscription fees. You may opt-out of receiving electronic messages from us by visiting the opt-out page located on the site you opt-ed in at -and filling out the appropriate form and submitting it to us or by contacting us in writing at email@example.com with “opt-out” in the subject line and include your e-mail and/or SMS address(es) and/or mobile telephone number.
3. Non-Commercial Use by Users/Viewers: The COMPANY site and services is for the personal use of individual users and viewers only and may not be used in connection with any commercial endeavors. Organizations, companies, and/or businesses should not use the COMPANY services or site for any commercial purpose. Illegal and/or unauthorized uses of the site or services, including unauthorized framing of or linking or packaging of the site or services or signing up another person’s e-mail or SMS address to such services without their consent or the sending or forwarding to another e-mail or SMS address unsolicited bulk commercial e-mail or SMS messages shall constitute a material breach of this agreement and will be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress.
4. Proprietary Rights of Content by COMPANY: COMPANY owns and retains other proprietary rights in the COMPANY site and the COMPANY services and content. The site and services contains the copyrighted material, trademarks, and other proprietary information of COMPANY, , and its licensors. Except for that information which is in the public domain or for which you have been given permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.
5. Content Posted/CDA:
B) You are solely responsible for the content that you publish or display (hereinafter, “post”) on the COMPANY site, or transmit to other COMPANY users.
C) By posting content to any public area of COMPANY, you automatically grant, and you represent and warrant that you have the right to grant, to COMPANY and its users, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, perform, display, and distribute such information, rights of publicity, and content and to prepare derivative works of, or incorporate into other works and other media, such information and content, and to grant and authorize sublicenses of the foregoing. As a visitor to COMPANY if you provide COMPANY with your e-mail or SMS address via a registration process or post it on COMPANY’s site(s) you thereby authorize COMPANY and its affiliates and any entities that COMPANY becomes involved with or merges with, the right to use and/or sell your valid email or SMS address for any marketing programs or communications with you.
D) The following is a partial list of the kind of content that is illegal or prohibited on the site. COMPANY will investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the service and terminating the services of such violators. It includes content that: is patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person or invades their privacy; involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”; promotes information that you know is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page); displays pornographic or sexually explicit material of any kind; provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18; provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; solicits passwords or personal identifying information for commercial or unlawful purposes from other users; and engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
E) You must use the COMPANY service in a manner consistent with any and all applicable laws and regulations.
F) You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to bypass or to interfere or attempt to interfere with the proper working of the COMPANY Site or services. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our site is updated on a real time basis and is proprietary or is licensed to COMPANY by our users or third parties.
G) You may not engage in advertising to, or solicitation of, other users to buy or sell any products or services through the service. You will not transmit any chain letters or junk email to other COMPANY users. Although COMPANY ordinarily cannot monitor the conduct of its users off the COMPANY site, it is also a violation of these rules to use any information obtained from the service in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any member without their prior explicit consent.
6. Copyright Policy/DMCA Notice: You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights or otherwise have a valid basis under the law, including “fair use”. Without limiting the foregoing, if you believe that your work has been copied and posted on the COMPANY service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information consistent with the Digital Millennium Copyright Act (DMCA): an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the our site or in our electronic messages including if feasible the URLs of web pages and/or hyperlinks; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. COMPANY’s Copyright Agent for Notice of claims of copyright infringement can be reached as follows:
1. Append Services
Within three (3) days of executing the DigDev Direct invoice (hereinafter the “Invoice”), by reference herein, Client shall deliver to DigDev Direct the Customer Database, defined as a compilation of records, each consisting of the first and last name and full physical address of a customer of Client. DigDev Direct shall provide an email address, when available, matching each corresponding record, and shall return the Customer Database to Client in a commercially expeditious manner, or as otherwise specified in the Invoice. DigDev Direct shall not transfer the Customer Database to any third party, nor use the Customer Database, for any purpose other than as provided in these Terms and Conditions or the Invoice.
Client shall pre-pay in full the fees set forth in the Invoice. Such fees shall be calculated by multiplying the indicated rate by the number of email addresses DigDev Direct matches and appends to the Customer Database. If Client fails to pay the full amount of the charges detailed in any Invoice by the earlier of fifteen (15) days after receipt of such Invoice DigDev Direct reserves the right not to forward the append file to that client.
Due to the natural attrition of data, any append data that has been verified through the mailing of the client’s welcome letter by DigDev Direct, Inc. that is found to be undeliverable within 5 business by the client, will be replaced with new data by DigDev Direct, Inc. at no additional cost to the client. If no valid replacements can be supplied, the client will receive a company credit. All data deemed undeliverable by the client must be returned directly to DigDev Direct, Inc. at returns@DigDev Direct.com to verify such undeliverability.
DigDev Direct, Inc. reserves the right to deny credit to the client for any and all files sent to the client that have not gone through the process of a welcome letter verification.
a. By Client ‘Äì Client shall indemnify, defend, and hold harmless DigDev Direct against all third party claims, actions, and liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or in connection with: (i) Client’s sale or resale of, promotion of, or misrepresentation about the Client Database; (ii) Client’s breach of any of its obligations, representations, or warranties under these Terms and Conditions (including those set forth in the Invoice); and (iii) any allegation that the Customer Database and/or any communication with the Customer Database violates any third party’s Intellectual Property Rights or privacy rights. DigDev Direct shall promptly notify Client in writing of all such claims and shall accommodate Client’s reasonable requests for cooperation and information.
b. By DigDev Direct’Äì DigDev Direct shall indemnify, defend, and hold harmless Client against all third party claims, actions, and liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or in connection with: (i) DigDev Direct’s misuse of the Client Database in violation of these Terms and Conditions; and (ii) DigDev Direct’s breach of any of its obligations, representations, or warranties under these Terms and Conditions. Client shall promptly notify DigDev Direct in writing of all such claims and shall accommodate DigDev Direct’s reasonable requests for cooperation and information.
DigDev Direct MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADDRESSES, EXPRESS OR IMPLIED. DigDev Direct EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL DigDev Direct BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE LOSS, DAMAGE, OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF DigDev Direct’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE, OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THESE TERMS AND CONDITIONS OR THE INVOICE SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID TO DigDev Direct UNDER THE INVOICE.
7. Force Majeure
Neither party shall be liable for delays or nonperformance of these Terms and Conditions, or the accompanying Invoice, caused by strike, fire, or accidents, nor shall either party be liable for delay or nonperformance caused by lack of availability of materials, fuel, or utilities or for any other cause beyond its control.
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
9. Relationship of the Parties
The parties are independent contracting entities, and there is no employment, partnership, or agency relationship between them.
10. Entire Agreement
Except as modified or supplemented by a writing executed by both parties, the Terms and Conditions described herein and in the Invoice are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein. In the event of any conflict between these Terms and Conditions and any other document (including, without limitation, the Invoice and any Client invoice, insertion order, or purchase order), the provisions of these Terms and Conditions shall govern.
Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms and Conditions. The law of the State of Florida shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms and Conditions shall be Broward County, Florida.
Should any provisions of these Terms and Conditions be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from these Terms and Conditions without affecting the validity or enforceability of any other provision.
The headings of these Terms and Conditions are for convenience only and shall not be used to
construe the meaning of this Agreement.
POSTAL RENTAL TERMS OF SERVICE
“Information” refers to the mailing lists and/or data provided to Licensee. Licensee is defined as a company wishing to use Information for direct mail / telemarketing activities.
Licensee agrees to use “Information” in compliance with any and all applicable Federal and State laws, rules, and regulations, including but not limited to those concerning fax broadcasts, e-mail transmissions, and direct marketing. Licensee will abide by the current business practices respecting the privacy of consumers and will not imply to an individual that any specific information is known about that individual.
Licensee may rent Information for continual use within one year from the date of rental. Rental will be for one-time use for a single entity or company, unless otherwise designated. Except with written consent, Licensee shall not:
• Use or permit the use of Information for generating any statistical information which is sold, rented, published, furnished or in any manner provided to a third party;
• Use or permit the use of Information to prepare any comparison to other information data bases, which is sold, rented, published, furnished or in any manner provided to a third party;
• Use or permit the use of Information in connection with individual credit, employment or insurance applications. Publish, distribute or permit disclosure of the information, other than to employees and agents of the Licensee for internal use in the Licensees’ business;
•Use or permit use of Information for the purpose of compiling, enhancing, verifying, supplementing adding to, or deleting from any mailing list, geographic or trade directories, 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.
• Use or permit use of Information 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. If User receives consumer “lifestyle” data with Information, such lifestyle data shall not be used in connection with any telemarketing activities. All marketing communications used in connection with Information 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 Fair Information Practices published by the Direct Marketing Association (“DMA”).
We do not warrant the comprehensiveness, completeness, or accuracy of Information. The Information is provided to licensee “as is” without guarantee, and we make no express or implied warranties, including without limitation, any express or implied warranties of merchantability or fitness for a particular purpose. We shall not be liable for any consequential, incidental, special damages, lost profits or any damages of a similar nature even if we have been advised of the possibility of such damages.