EMAIL APPEND TERMS
EMAIL
APPEND TERMS
1. Append
Services
Within three (3)
days of
executing the
Sendit Media
invoice
(hereinafter the
"Invoice"), by
reference
herein, Client
shall deliver to
Sendit Media 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. Sendit
Media 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. Sendit
Media 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.
2. Payment
Client shall 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
Sendit Media
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 or the
time specified
on the Invoice,
the unpaid
amounts of such
Invoice shall
accrue interest
at a rate of 18%
per annum or, if
less, the
maximum
permitted by
law.
Additionally,
Client agrees to
pay all of
Sendit Media's
cost of
collection of
such charges,
including
without
limitation
Sendit Media's
reasonable
attorneys'
fees.
3. Late Fees
In addition to
the terms
described in
Section 2,
above, if Client
fails to pay the
full amount of
the charges
detailed in any
Invoice within
fifteen (15)
days of receipt
of such Invoice,
Client shall pay
SendIt Media a
Late Fee in the
amount of 5% of
the charges
detailed in such
Invoice.
4.
Indemnification
a. By Client
- Client shall
indemnify,
defend, and hold
harmless Sendit
Media 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. Sendit
Media shall
promptly notify
Client in
writing of all
such claims and
shall
accommodate
Client's
reasonable
requests for
cooperation and
information.
b. By
Sendit Media -
Sendit Media
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) Sendit
Media's misuse
of the Client
Database in
violation of
these Terms and
Conditions; and
(ii) Sendit
Media's breach
of any of its
obligations,
representations,
or warranties
under these
Terms and
Conditions.
Client shall
promptly notify
Sendit Media in
writing of all
such claims and
shall
accommodate
Sendit Media's
reasonable
requests for
cooperation and
information.
5. WARRANTIES
Sendit Media
MAKES NO
WARRANTY
WHATSOEVER AS TO
THE EMAIL
ADDRESSES,
EXPRESS OR
IMPLIED. Sendit
Media 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 Sendit
Media BE LIABLE
FOR INDIRECT,
SPECIAL,
EXEMPLARY,
CONSEQUENTIAL,
INCIDENTAL, OR
PUNITIVE LOSS,
DAMAGE, OR
EXPENSE
(INCLUDING LOST
PROFITS). THE
LIMIT OF Sendit
Media'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
Sendit Media
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.
8. Assignment
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.
11. Disputes
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 Palm
Beach County,
Florida.
12.
Severability
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.
13. Headings
The headings of
these Terms and
Conditions are
for convenience
only and shall
not be used to
construe the
meaning of this
Agreement.