GENERAL TERMS
GENERAL TERMS
1. Copy Delivery
& Approval
Copy Delivery
and Approval.
Advertiser must
deliver to
Sendit Media, ("Sendit
Media") the
content of the
advertisement
Advertiser is
contracting
Sendit Media to
broadcast (the
"Copy") no less
than three (3)
days prior to
the desired
email broadcast
date. All Copy
shall be subject
to Sendit
Media's
approval. Sendit
Media 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, Sendit
Media 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.
2. Details of
Broadcast
The email
messages
broadcast by
Sendit Media
shall identify
the source of
the recipient's
data collection
and shall
contain an
opt-out feature
that allows the
recipient to
electronically
communicate his
desire to be
removed from the
Sendit Media (or
affiliate)
database.
3. Hardware,
Software and
Database
Sendit Media
shall obtain and
maintain the
computer
hardware and
software
necessary to
perform its
obligations
under these
Terms and
Conditions. Such
hardware and
software shall
not be dedicated
hardware or
software.
Nothing in these
Terms and
Conditions shall
grant any right,
title or
interest in or
to the Sendit
Media (or
affiliate)
database,
hardware or
software.
4. Payment
Advertiser
shall pay in
full the fees
charged by
Sendit Media in
the invoice. If
Advertiser fails
to pay the full
amount of the
charges detailed
in any Sendit
Media invoice
within thirty
(30) days of
such invoice,
the unpaid
amounts of such
invoice shall
accrue interest
at a rate of
17.5% per annum.
Additionally,
Advertiser
agrees to pay
all of Sendit
Media's cost of
collection of
such charges,
including
without
limitation
Sendit Media's
reasonable
attorneys'
fees.
5. Late Fees
In addition
to the terms
described in
Section 4, if
Advertiser fails
to pay the full
amount of the
charges detailed
in any Sendit
Media invoice
within thirty
(30) days of
such invoice,
Advertiser shall
pay Sendit Media
a Late Fee in
the amount of 5%
of the charges
detailed in such
Sendit Media
invoice.
6.
Indemnification
Advertiser
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
(a) Advertiser's product(s),
services or the
content of the
Advertiser's
copy, including
without
limitation any
claim alleging
any violation of
any third party's
intellectual
property rights;
or (b)
Advertiser's
breach of any of
its obligations,
representations
or warranties
under these
Terms and
Conditions.
Sendit Media
shall promptly
notify
Advertiser in
writing of all
such claims and
shall
accommodate
Advertiser's
reasonable
requests for
cooperation and
information.
Sendit Media
uses a variety
of data sources
to fulfill email
campaigns. We
have one of the
industries
largest in-house
opt-in email
databases as
well as several
management and
affiliate
relationships
with several
premier
permission based
email marketers.
7. WARRANTIES
Sendit Media
MAKES NO
WARRANTY
WHATSOEVER AS TO
THE EMAIL
ADVERTISEMENTS,
EXPRESS OR
IMPLIED. THIRD
PARTIES PROVIDE
THE EMAIL
ADVERTISEMENTS
ON AN "AS IS"
BASIS. Sendit
Media EXPRESSLY
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.
8. 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 MARKETING
’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
SHALL NOT IN THE
AGGREGATE EXCEED
THE FEES PAID TO
Sendit Media
UNDER THE
INVOICE.
9. Force
Majeure
Neither
party shall be
liable for
delays or
nonperformance
of these Terms
and Conditions
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.
10.
Assignment
Neither
party may assign
its rights or
obligations
under these
Terms and
Conditions
without the
prior written
consent of the
other party.
11.
Relationship of
the Parties
The parties
are independent
contracting
entities, and
there is no
partnership or
agency
relationship
between them.
12. Entire
Agreement
Except as
modified or
supplemented by
a writing
executed by both
parties, the
Terms and
Conditions
described herein
and in the
attached
invoice,
incorporated by
reference
herein, are the
only
representations,
warranties, and
understandings
between the
parties with
respect to the
products and/or
services
described
herein.
13. 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.
14.
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.
15. Headings
The headings
of these Terms
and Conditions
are for
convenience only
and shall not be
used to construe
the meaning of
this Agreement.