This is a binding written contract [hereinafter referred to as “Agreement”], the terms of which are contractual and not a mere recital, between National Email Service. [hereinafter referred to as “Provider”] and the entity, referenced above in the box labeled “Client:” [hereinafter referred to as “Client”], which includes, but is not limited to, a summary of the core details, cost, logistics, terms of service and reporting:
1. Core Details:
Provider is a lawfully licensed seller of the PHP application “The Dashboard” provided by National Email Service i.e., email marketing software). Client is contracting to have us “The Provider” setup email marketing campaigns with said application on behalf of you “The Client”.
2. Cost:
- Cost of Service: $1,499.00 Includes Dedicated 4G Ram Server, Database Rental, 1 Domain Name and 4 Clean IP addresses. This server is capable of sending approximately 15 million emails per month or 500,000 email per day. This covers 1 months of service and will automatically renew.
3. Client’s & Client’s Agent’s Representations & Warranties:
Client and Client’s Agent represents and warrants that:
(a) Client’s Agent has the full power, authority and right to enter into this Agreement, on behalf of Client, and that he/she is at least 18 years of age;
(b) the execution, delivery and performance by Client of this Agreement will not violate any applicable law, statute or governmental regulation; and
(c) Client is responsible for the security of the data, software and/or applications it receives from Provider. The responsibility of Client also includes the security of the data, software and/or applications provided to any third party email service providers that Client employs.
4. Additional Terms and Conditions:
4.1. Term of this Agreement: The initial term of this Agreement shall be for a minimum of twelve months, unless otherwise provided herein. The term of this Agreement will begin upon Client’s payment of the usage fee and will end when terminated by either you or us as described herein, under the heading “Termination of this Agreement”, below. Each month’s usage period shall run from the anniversary date of your signup, until the day prior to the anniversary date of your signup in the next month. I.e., if you originally signed up on the 15th day of the month, then each month’s usage period will run from the 15th day of the month until the 14th day of the next month. (E.g., if you open your account on October 15th, then your first month’s usage period shall expire on November 14th) If your anniversary date does not occur in a particular month, then that month’s usage period shall end on the last day of the month and the next month’s usage period shall begin the next day. If you signed up for an annual, the month to month agreement does not apply to your account.
4.2. List Management: Provider shall arrange for the maintenance of an opt-out option for Client’s campaign(s). Client understands all opt-out requests from consumers for all campaigns by Client will be honored and additional advertisements to these emails, pursuant to the United States CAN-SPAM Act of 2003 [hereinafter referred to as the “CAN-SPAM Act”], shall not be sent. Client agrees to indemnify and hold Provider harmless for each and every email Client sends: (1) in violation of the CAN-SPAM Act; (2) to an address on Provider’s and/or Client’s block list; (3) to an address that has previously opted-out from receiving emails from Client; (4) in violation of Provider’s Acceptable Use Policy [hereinafter referred to as “AUP”]; (5) in violation of Provider’s Terms of Use [hereinafter referred to as “TU”]; (6) in violation of any laws, statutes or regulations which may apply to the message; and/or (7) otherwise in violation of this contract.
4.3. Reports: A username and password for a custom dedicated server will be emailed to Client before the first campaign is started. Once logged on, Client will have access to real time reporting of its campaign. The reporting will allow Client to see how many people viewed its message, how many times a link in Client’s email message was clicked on (i.e., the number of “click throughs”), and how many people chose to opt out of its campaign. Every campaign will be added to Client’s secure site where results can be measured.
4.4. Right to Refuse: Provider reserves the right to refuse any or all services based on its company policy of respectable marketing practices at anytime. Provider holds strict rules and regulations for its email marketing and hosting services. Provider will not broadcast emails that contain illegal sexual content, illegal pirated software, hate, discrimination, or that are in violation of any known federal, state or international law. In addition, Provider reserves the right to determine what is in the best public interest and may elect not to broadcast any message it finds not to be in the best public interest.
4.5. Limitations on Use of Software and Services: Client agrees that it will not use Provider’s products or services to transmit, disseminate or upload any: (1) unlawful, harassing, libelous, tortuous, abusive, threatening, or obscene communications of any kind; (2) materials that infringe or violate any third party's copyright, trademark, trade secret, privacy or other proprietary or property right; (3) materials that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation; (4) objectionable materials, including but not limited to, content that contains blatant bigotry, racism, or hatred or that promotes illegal activities or physical harm against anyone; (5) spam, chain letters, junk mail or any other type of unsolicited mass email to people or entities who have not agreed to be part of such mailings; (6) any viruses or other harmful, disruptive or destructive files; and (7) in violation of the Provider’s “TOS”. Content containing nudity or pornographic material of any kind will not be disseminated to people under age 18, or to anyone on lists that are not limited to people age 18 or older.
4.6. Email Marketing Campaigns: Client acknowledges and agrees that there are no guarantees of success for any email marketing campaigns. Like any form of traditional advertisement, email marketing has its successes and failures due to marketing conditions and other factors. CLIENT AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY UNSUCCESSFUL EMAIL MARKETING CAMPAIGNS. FURTHERMORE, CLIENT AGREES THAT PROVIDER DOES NOT GUARANTEE ANY EMAIL MARKETING SUCCESS AND CLIENT SHALL NOT BE ENTITLED TO A REFUND OR ANY OTHER DAMAGES IF CLIENT’S EMAIL MARKETING CAMPAIGN(S) FAILS TO GENERATE THE RESULTS CLIENT DESIRES OR ANY RESULTS THEREOF. Provider is agreeing to provide Client with the software to broadcast Client’s message(s) to the recipients listed in each of Client’s email marketing campaigns’ broadcast list, Provider is not making any promises nor giving any guarantees Client’s message(s) will be successfully delivered to each recipient. Client agrees that the deliverability of Client’s message(s) is subject to numerous factors and that many of those factors are outside Provider’s control and that so long as Provider has supplied client with the means to broadcast its message, the actual delivery is not Provider’s responsibility, regardless of the reason a message was not delivered or received by an intended recipient. Additionally, Client agrees and understands that because Provider relies on the truthfulness of the persons providing the information contained in its database(s) and/or list(s) of recipients, Provider cannot guarantee that all of the information is 100% accurate and can only guarantee that the information was reported to it as accurate at the time it was collected. However, Provider does guarantee that any inaccuracies in its database(s) and/or list(s) of recipients are corrected or deleted when discovered. Client understands and agrees that the Data is the sole property of Provider, that Client is leasing the right to use the Data pursuant to the terms of this Agreement, and that Client will under no circumstances be given or entitled to receive a physical copy of the Data. If a dispute arises regarding the contents or quality of a list, Client must contact Provider within 72 hours of the start of the subject broadcast at sales@massmarketingdata.com. Upon receipt of a timely request, Provider will stay the deletion of the broadcast list for a maximum of 2 weeks, to allow Client to come to Provider’s offices and visually inspect the Data.
4.7. Payment, Financial Agreement, Refund Policy: Client acknowledges and agrees that all financial information given to Provider (e.g., credit card, electronic debit information, etc.) is true and lawfully theirs to and that Provider is reasonably relying on said representations in entering into this Agreement and providing its products and/or services. Client acknowledges that all payments are due in advance of any marketing campaign or the setup of a hosting account and that Provider maintains a “no refund policy” for any marketing campaigns, once the account has been set up and approved for mass market by Provider, and/or hosting accounts, once they have been setup and approved for use. Client expressly acknowledges that Provider performs a substantial and significant portion of the work required of it to be performed, prior to the actual broadcast, and that Client is not entitled to a refund if Client elects not to proceed with the broadcast. In addition, once a hosting account is set up, there will be no refund. All email marketing software and hosting accounts will be charged on the first day of sign up and subsequently for each individual month for the full term of the contract. The monthly fee will be automatically charged to Client’s account and paid by Client, in advance, until this Agreement is terminated and Client’s account is canceled, regardless of List or account activity and/or use of the Services. All software and/or hosting account cancellations and/or terminations must be made in writing, as set forth in the Terms of Use. Provider will prosecute to the full extent of the law for any fraudulent financial information given to it.
4.8. Customer Chargebacks, Payment Reversals, Payment Dishonors, Theft, Credit Reporting Agencies and Collection Agency: Provider regards fraud and theft of services as very serious crimes. Because of the nature of online services, any chargeback, reversal, or any attempt to stop a payment initiated by Client after using Provider’s services will be considered theft and treated as fraud. Client agrees that all payments initiated by Client in which charges are made to Client’s credit card, debit card, or bank account are final and irreversible. Client agrees to not file a credit card or debit card chargeback against Provider with regard to any purchase made by Client. In the event Client breaches this Agreement by filing a chargeback, upon a resolution in Provider’s favor of such chargeback by the credit card issuing bank, the credit card processor, or by VISA, MASTERCARD, AMERICAN EXPRESS, DISCOVER, or any other credit card service, Client agrees to reimburse Provider for any and all costs incurred in connection with such chargeback, including without limitation, Provider’s actual costs paid to the credit card processor or banks, as well as any other third-parties. Client agrees to authorize Provider to charge these amounts to Client’s credit card, debit card, or bank account. In the event Client’s chargeback is upheld by the credit card issuing bank, the credit card processor, or by VISA, MASTERCARD, AMERICAN EXPRESS, DISCOVER, or any other credit card service, Client agrees that such resolution is not dispositive on the issue of the amounts owed by Client to Provider. If such chargeback is upheld, Client agrees to pay all of the same costs, in addition to the original purchase price, and that Provider will use the dispute resolution procedures below to collect such amounts.
Client agrees that any amounts owed by Client to Provider for 30 calendar days or more after charges are successfully reversed due to a chargeback may be reported to credit reporting agencies as a delinquent collection amount and may be referred to a third-party debt collection agency for full pursuit of collection without further notice. The costs of such collection and any related costs, including without limitation, collection agency fees, attorneys’ fees, court costs, and the like, shall be added to the amount owed by Client to Provider, and shall bear interest at the rate of 9% per annum until satisfied. The credit reporting agencies will report against the credit of the cardholder. Once the account is turned over to the collection agency and the local authorities, the matter is out of Provider’s hands. This will result in cardholder’s credit history being marked as a “Collection Account” by the collection agency. CLIENT UNDERSTANDS THAT PROVIDER’S COLLECTION EFFORTS MAY ADVERSELY AFFECT CLIENT’S CREDIT RATING.
Furthermore, Client agrees that in the event Client files a chargeback against provider regarding any purchase, Provider reserves the right to report the incident for inclusion in any chargeback abuser databases of Provider’s choosing and in Provider’s sole discretion. The information reported will include Client’s name, email address, order date, order amount, IP address, full address, and phone number. CLIENT UNDERSTANDS THAT BEING LISTED ON SUCH DATABASES MAY MAKE IT MORE DIFFICULT FOR CLIENT TO SUE ANY OF CLIENT’S CREDIT CARD(S) COMPANIES ON FUTURE PURCHASES WITH PROVIDER OR OTHER ONLINE MERCHANTS.
To avoid any of the foregoing in this section, Provider encourages Client to contact Provider first for any problems with Client’s purchase. Provider has an excellent track record in resolving any problems in order to ensure that Provider’s clients are fully satisfied with their purchase(s).
4.9. Default or Breach by Client; Fees & Cost; Preemption: If Client defaults on or otherwise breaches any of the terms, conditions, covenants and/or warranties contained in this Agreement, Client agrees to compensate Provider for any and all damages arising thereof, including but not limited to actual damages, consequential damages and economic losses. Furthermore, Client agrees Provider shall be entitled to recover all reasonable fees, expenses and/or costs (including attorney’s fees, in-house counsel costs, court costs, expenses and other costs) incurred in attempting to collect payment from Client or in enforcing this Agreement against Client, to the extent not prohibited by applicable law.
4.10. Indemnification and Liability: Client agrees and acknowledges that it shall hold Provider (including but not limited to all its employees, officers, shareholders, directors, agents, attorneys, vendors, affiliates, subcontractors, its parents, subsidiaries, suppliers or contract employees) harmless from any liability, loss, claims, and/or expenses related to any or all email marketing campaigns.
4.11. Disclosure of Information: Provider and Client [hereinafter referred to jointly as “the parties” or individually as “party”] shall not disclose personally identifiable information, private communications (i.e., content transmitted on private, non-public lists) of the other party, to third parties, without that party’s permission, unless it believe such disclosure is reasonably necessary to: (1) comply with the law or legal process; (2) protect or defend its rights or property or that of others; (3) enforce this Agreement; or (4) respond to claims that the contents of any communications violate the rights of others.
Client understands and agrees that Provider has disclosed or may disclose information that has commercial and other value in Provider’s business and is confidential in nature including, but not limited to, email addresses, cellular telephone numbers, formulas, computer programs, databases, mask works, technical drawings, algorithms, trade secrets, patents, patent applications, technology, circuits, layouts, names and expertise of employees and consultants, know-how, designs, interfaces, materials, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer, supplier and product development plans, forecasts, strategies and information, which to the extent previously, presently, or subsequently disclosed to Client is hereinafter referred to as “Proprietary Information” of Provider.
In consideration of the parties' discussions and any access Client may have to Proprietary Information of the Provider, Client hereby agrees as follows: 1) Client agrees (i) to hold Provider’s Proprietary Information in strict confidence as a fiduciary and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Client employs with respect to its most confidential materials), (ii) not to divulge any such Proprietary Information or any information derived there from to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except for the sole limited business purposes of evaluating the Proprietary Information internally to determine whether to enter into the currently contemplated agreement with the Provider, (iv) not to remove or export from the United States or re-export any such Proprietary Information or any direct product thereof to Afghanistan, The Peoples’ Republic of China or any Group Q, S, W, Y or Z country (as specified in Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations, or a successor thereto) or otherwise except in compliance with and with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce, and (v) not to copy or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any Proprietary Information. Any employee given access to any such Proprietary Information must have a legitimate "need to know" and shall be similarly bound in writing; 2) Without granting any right or license, the Provider agrees that the foregoing clauses (i), (ii), (iii) and (v) shall not apply with respect to any information that the Client can document (i) is (through no improper action or inaction by the Client or any affiliate, agent, consultant or employee) generally known to the public, or (ii) was rightfully in its possession or rightfully known by it prior to receipt from the Provider, or (iii) was rightfully disclosed to it by a third party without restriction. The Client may make disclosures required by court order provided the Client uses its best efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Provider to participate in the proceeding; and 3) Immediately upon a request by the Provider at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party's address herein), the Client will turn over to the Provider all Proprietary Information of the Provider and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. The Client understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Provider, which shall be disclosed if at all solely at the option of the Provider, or (ii) requires the Provider to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.
4.12. Proprietary Rights: As provided in subsection 4.11 (i.e., the subsection labeled “Disclosure of Information”), above, Provider will not sell, trade, rent, lend or disseminate email addresses that Client supplies for any purpose. However, it is understood that if some of the addresses Client supplies are in the Provider’s database(s) and/or list(s) of recipients that Provider otherwise has or owns, that Provider has proprietary rights to such addresses.
4.13. NO OTHER REPRESENTATIONS AND WARRANTIES: CLIENT UNDERSTANDS AND AGREES THAT NO ADVICE, INFORMATION OR OPINIONS, WHETHER WRITTEN OR ORAL, OBTAINED BY CLIENT FROM PROVIDER SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. CLIENT UNDERSTANDS AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF CONDUCT, OR COURSE OF PERFORMANCE. CLIENT UNDERSTANDS AND AGREES THAT ALL PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT PROVIDER DOES NOT MAKE ANY WARRANTIES THAT PROVIDER’S PRODUCTS OR SERVICES WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED OR STORED THROUGH THE USE OF PROVIDER’S PRODUCTS AND SERVICES IS AT CLIENT’S OWN DISCRETION, CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS. CLIENT UNDERSTANDS AND AGREES THAT THE USE OF ANY OF PROVIDER’S PRODUCTS AND/OR SERVICES IS AT CLIENT’S SOLE RISK.
WITHOUT LIMITING THE FOREGOING, PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTIES REGARDING (A) THE NUMBER OF PERSONS WHO VIEW ANY EMAIL BROADCAST PURSUANT TO THIS AGREEMENT, AND (B) ANY BENEFIT CLIENT MIGHT OBTAIN FROM HAVING ITS MESSAGES, PRODUCTS AND/OR SERVICES ADVERTISED PURSUANT TO THIS AGREEMENT.
4.14. Miscellaneous:
4.14.1. Waiver: The failure of either Provider or Client to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
4.14.2. Force Majeure: Neither party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to Client’s payment obligations) as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition(s) to the other party.
4.14.3. Relationship of the Parties: The parties to this Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. This Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
4.14.4. Survival: Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening, including but not necessarily limited to subparagraph 4.14.13 (captioned “Entire Agreement; Acceptance”), below.
4.14.5. Construction; Severability: Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary, allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Furthermore, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
4.14.6. Remedies: Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.
4.14.7. Amendment: No change, amendment, or modification of any provision of the Agreement will be valid unless set forth in a written instrument signed by both parties.
4.14.8. Assignment: Client shall not sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of Provider. Notwithstanding the foregoing, without securing such prior consent, either party shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest of such party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning party of more than seventy-five percent (75%) of the outstanding stock of the assigning party. Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.
4.14.9. Headings: The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
4.14.10. Counterparts: This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
4.14.11. Governing Law; Jurisdiction and Venue, Service of Process: This Agreement shall be governed by the laws of the State of Illinois without respect to choice of law rules and the parties hereby consent to the exclusive jurisdiction and venue in the state courts of Dupage County, Illinois and/or the federal court for the Northern District of Illinois, for such purpose. Client waives the personal service of any process upon them and agrees that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.
4.14.12. LIMITATIONS OF LIABILITY: EXCLUDING THE CLIENT’S OBLIGATIONS UNDER SUBSECTION 4.10, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL PROVIDER (INCLUDING BUT NOT LIMITED TO ALL IT EMPLOYEES, OFFICERS, SHAREHOLDERS, DIRECTORS, AGENTS, ATTORNEYS, VENDORS, AFFILIATES, SUBCONTRACTORS, ITS PARENTS, SUBSIDIARIES, SUPPLIERS OR CONTRACT EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR INABILITY TO USE PROVIDER’S SERVICES AND/OR PRODUCTS OR FOR THE PROCURMENT OF SUBSTITUTE GOODS AND SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE PROVIDER’S PRODUCTS OR SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR STORED OR NOT STORED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY FAILURE TO DELIVER, HOLD OR STORE EMAIL OR DATA TRANSMITED, STORED OR USED BY PROVIDER’S PRODUCTS OR SERVICES. CLIENT AGREES THAT CLIENT’S SOLE AND EXCLUSSIVE REMEDY FOR ANY DISSATISFACTION WITH PROVIDER’S PRODUCTS OR SERVICES IS TO DISCONTINUE THE USE OF PROVIDER’S PRODUCTS AND SERVICES. WITHOUT LIMITING ANY OF THE FOREGOING, CLIENT AGREES THAT PROVIDER IS NOT RESPONSIBLE FOR ANY OF CLIENT’S MATERIALS (INCLUDING BUT NOT LIMITED TO CLIENT’S MESSAGES, IMAGES, DATA OR OTHER INFORMATION) RESIDING IN PROVIDER’S NETWORK HARDWARE OR SYSTEMS. CLIENT IS RESPONSIBLE FOR BACKING-UP CLIENT’S OWN MATERIALS, REGARDLESS OF WHETHER SAID MATERIALS ARE PRODUCED THROUGH THE USE OF PROVIDER’S PRODUCTS AND/OR SERVICES. CLIENT AGREES THAT IT IS CLIENT’S SOLE AND EXCLUSSIVE RESPONSIBILITY TO TAKE THE NECESSARY STEPS TO ENSURE CLIENT’S MATERIALS AND/OR PRIMARY MEANS OF BUSINESS IS MAINTAINED. IN NO EVENT SHALL PROVIDER EVER BE LIABLE FOR MORE THAN THE ACTUALL DOLLAR AMOUNT CLIENT PAID TO PROVIDER FOR THE USE OF PROVIDER’S PRODUCTS AND/OR SERVICES. ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE ASSERTED WITHIN ONE (1) YEAR OF THE DATE UPON WHICH SUCH CAUSE OF ACTION ACCRUED, OR WITHIN THREE (3) MONTHS OF THE DATE UPON WHICH THE COMPLAINING PARTY DISCOVERED OR SHOULD HAVE REASONABLY DISCOVERED THE EXISTENCE OF SUCH CAUSE OF ACTION, WHICHEVER IS LATER.
4.14.13. Entire Agreement; Acceptance: This Agreement, along with any documents expressly referenced herein, constitutes the entire and only agreement between the parties and supersedes any and all prior agreements, whether written, oral, express, or implied, of Provider and Client with respect to the transactions set forth herein. Neither party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by such party in any correspondence or other document, unless the party to be bound specifically agrees to such provision(s) in writing. The services and/or products referenced in this Agreement are offered to Client conditioned upon the acceptance of this Agreement and Client’s use of the services, software and/or other products constitutes Client’s acceptance of this Agreement.
5. Termination of this Agreement:
Provider may terminate this Agreement at any time, with or without cause, and with or without notice. If Provider terminates this agreement without cause and prior to Client having paid for Client’s 2nd month’s usage fee, then Client’s obligation to pay that fee shall be waived. However, if Provider terminates this agreement for cause, or if Client terminates it for any reason prior to Client having paid for Client’s second month’s minimum usage period, Client shall still pay the second month’s usage fee, regardless of whether Client uses the account or the services. IN THE EVENT CLIENT WOULD LIKE TO TERMINATE THIS AGREEMENT, CLIENT MAY DO SO ONLY BY SENDING TO, AND OUR RECEIVING, CLIENT’S NOTICE OF TERMINATION VIA EMAIL AT sales@massmarketingdata.com. Client shall not terminate this Agreement in any other manner, including, but not limited to, electronic, verbal, telephonic or other written means. Client’s termination of this Agreement will be effective upon the last day of the month in which Provider receives such notification and must be received by Provider at least five (5) days prior to Client’s next month’s renewal date. Client agrees that if Client’s account is terminated prior to the expiration of the full term, Client will not be entitled to any refund for the unused portion of the term.
