TERMS & CONDITIONS
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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.
CPM TERMS
1. Definitions.
(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 Sendit Media 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 Sendit Media for email broadcast hereunder.
(g) "CPM" means Cost Per Thousand e-mails sent.
(h) "Invoice" means the Sendit Media invoice signed by Client, and specifically incorporating these Terms and Conditions therein.
(i) "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 Sendit Media or an Sendit Media affiliate Internet website.
(j) "Privacy Header" means a notice to recipients of the Copy that informs the recipient: (i) of the location of such recipient's subscription to Sendit Media 's or Sendit Media '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 Sendit Media the desire to unsubscribe.
2. Term.
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 Sendit Media , ("Sendit Media LLC ") 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.
4. Fulfillment.
Sendit Media 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. Sendit Media shall remove recipients that have communicated a desire to unsubscribe from Sendit Media '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 Sendit Media 's sole discretion.
5. Tracking and Reporting.
Except as otherwise expressly provided in the Invoice, Client shall provide to Sendit Media 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 Sendit Media under the terms of this Agreement. Client shall permit an Sendit Media authorized representative to inspect such books of accounts and other documents during regular business hours upon ten (10) days' notice from Sendit Media . Such inspection shall be at Sendit Media 's sole expense, unless the inspection reveals that the amounts due Sendit Media exceed the amounts actually reported as due by Client ("Discrepancy") by five percent (5%) or more, in which case Client shall pay to Sendit Media the costs of the inspection revealing the Discrepancy. For any Discrepancy, Client shall pay to Sendit Media 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, Sendit Media may, in its sole discretion, impose liquidated damages on Client in the amount of twenty-four cents ($.24), or if less, Sendit Media 's then current undiscounted CPM broadcast rate for each Opt-In Email Recipient to which Sendit Media 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 Sendit Media hereunder without Sendit Media 's express prior written consent.
8. Hardware, Software, and Database.
Sendit Media 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 Sendit Media 'S hardware, software, or Opt-In Email Recipient database.
9. Payment.
Client shall pay to Sendit Media a fee as set forth in the Invoice. Unless otherwise specified in the Invoice, Client shall pre-pay each invoice in full. If specified otherwise, client must pay within thirty (30) days of receipt. If Client fails to timely pay the full amount of the charges detailed in any Sendit Media invoice as set forth herein, Client agrees to pay all of Sendit Media 's costs of collection of such charges, including without limitation Sendit Media '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 Sendit Media 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. Sendit Media shall promptly notify Client in writing of all such claims and shall accommodate Client's reasonable requests for cooperation and information. Sendit Media shall agree to Client's sole control over the defense and any settlement of such claims.
11. Indemnification by Sendit Media .
Except for claims indemnified by Client pursuant to Section 10 above, Sendit Media 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) Sendit Media 's fulfillment of the Client broadcasts; or (b) Sendit Media 's breach of any of its obligations, representations, or warranties under this Agreement. Client shall promptly notify Sendit Media in writing of all such claims and shall accommodate Sendit Media 's reasonable requests for cooperation and information. Client shall agree to Sendit Media 's sole control over the defense and any settlement of such claims.
12. No Other Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Sendit Media MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE EMAIL BROADCASTS. Sendit Media 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 Sendit Media 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.
15. Assignment.
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.
17. Confidentiality.
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 Palm Beach 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.
20. Severability.
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.
21. Headings.
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.
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.
Text version of the campaign - should be in an ASCII text format (.txt).
HTML version of the campaign - should be in a HTML format *.html or *.htm. (we do not accept HTML files created in MS-Word)
If the HTML has an images in it, then all images must be in the email with the text & HTML files.
Approval test will be sent within 24hrs after we receive complete creative.
Live Broadcast will be sent within 24hrs after test is approved by client.
Email creative weight should not exceed 50kb
Creative Images are to be provided as GIF / JPG or PSD formats
Sendit Media , Inc. makes no guarantees as to results of any campaigns. Results vary based on the offer, the target audience and other variables. Advertisers acknowledge that they are paying Sendit Media , Inc. for a service and that no guarantees were expressed or implied and that the advertiser understands Sendit Media has a no refund policy. All data utilized or acquired is the property of Sendit Media .
Returned leads will be accepted as return requests. If the return reason is valid, we replace your return with a fresh lead. We ask that returns requests be submitted less than 24 hours from time received, for live transfers, and within 72 hours for next-day verified paper leads.
VALID RETURN REASONS
Bad phone numbers: The leads contain an invalid or incomplete telephone number.
Bogus leads: If the Lead is wrong contact or a non-existent person. Duplicate Data: If you have received two of the same lead.
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