Advertiser must deliver to TAKE 5 SOLUTIONS LLC, (“the Company”) the content of the advertisement (the “Copy”). Advertiser is contracting the Company to broadcast no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to the Company's approval. The Company 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, the Company shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy.
DETAILS OF BROADCAST
The email messages broadcast by the Company 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 Company (or affiliate) database.
HARDWARE, SOFTWARE, AND DATABASE
The Company 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 & Conditions shall grant any right, title or interest in or to the Company (or affiliate) database, hardware or software.
Advertiser shall pay in full the fees charged by the Company in the invoice. If Advertiser fails to pay the full amount of the charges detailed in any of the Company's invoices within thirty (30) days of such invoice, the unpaid amounts of such invoice shall accrue interest at a rate of 18% per annum. Additionally, Advertiser agrees to pay all of the Company's costs of collection of such charges, including without limitation the Company's reasonable attorneys' fees.
In addition to the terms described in Section 4, if Advertiser fails to pay the full amount of the charges detailed in any of the Company's invoices within thirty (30) days of such invoice, Advertiser shall pay the Company a Late Fee in the amount of 5% of the charges detailed in the Company's invoices.
Advertiser shall indemnify, defend and hold harmless the Company 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 intellectual property rights; or (b) Advertiser's breach of any of its obligations, representations or warranties under these Terms & Conditions. The Company shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser's reasonable requests for cooperation and information.
THE COMPANY MAKES NO WARRANTY WHATSOEVER TO THE EMAIL OR POSTAL LISTS EXPRESS OR IMPLIED. IN THE CASE OF EMAIL THIRD PARTIES PROVIDE THE EMAIL ADVERTISEMENTS ON AN “AS IS” BASIS. TAKE 5 SOLUTIONS LLC EXPRESSLY DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF LIST 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.
LIMIT OF LIABILITY
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF TAKE 5 SOLUTIONS LLC'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 THE COMPANY UNDER THE INVOICE.
Neither party shall be liable for delays or nonperformance of these Terms & 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.
Neither party may assign its rights or obligations under these Terms & Conditions without the prior written consent of the other party.
RELATIONSHIP OF THE PARTIES
The parties are independent contracting entities, and there is no partnership or agency relationship between them.
Except as modified or supplemented by a writing executed by both parties, the Terms & 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.
Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms & Conditions. The laws of the State of Delaware shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms & Conditions shall be Palm Beach County, Florida.
Should any provisions of these Terms & 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 & Conditions without affecting the validity or enforceability of any other provision
The headings of these Terms & Conditions are for convenience only and shall not be used to construe the meaning of this Agreement.
The Company is not responsible for the success of its Customer's advertising campaign. No refunds or credits will be authorized. All representations and warranties whether express or implied, including without limitation, any warranties of merchantability or fitness for a particular purpose, are hereby disclaimed by the Company. In no event shall the Company be liable for any direct, indirect, special, exemplary, incidental, consequential or punitive damages, irrespective of whatever such damages were foreseeable or unforeseeable.
The limit of the Company liability (whether in contract, tort, negligence, strict liability or by statute or otherwise) in any manner related to this Agreement, for any and all claims, shall not in the aggregate exceed the fees and expenses paid for the services rendered by the Company. In no event shall either party be liable for consequential, incidental or punitive losses, damages or expenses (including lost profits.) Any action by either party must be brought within six (6) months. Venue and jurisdiction for any claim arising from or out of this Agreement shall be in Palm Beach County, Florida.
The Company does not permit the usage of exit pop-up window links on offer landing pages without prior consent by both parties. If mutual agreement of exit pop-up windows linked to landing pages, the following line must be signed by the Take 5 Solutions' account manager.