(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 Omni Point 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 Omni Point for email broadcast hereunder.
(g) “CPM” means Cost Per Thousand e-mails sent.
(h) “CPC” means Cost Per Click.
(i) “Invoice” means the Omni Point invoice signed by Client, and specifically incorporating these Terms and Conditions therein.
(j) “Opt-In Email Recipient” means a person that has consented to receive promotional information about products and services via e-mail by subscribing to an Omni Point or affiliate Internet website.
(k) “Privacy Header” means a notice to recipients of the Copy that informs the recipient: (i) of the location of such recipient’s subscription to Omni Point’s or Omni Point’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 Omni Point the desire to unsubscribe.
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.
- Copy Delivery and Approval.
Copy Delivery and Approval. Advertiser must deliver to Omni Point, (“Omni Point”) the content of the advertisement Advertiser is contracting Omni Point to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to Omni Point’s approval. Omni Point 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, Omni Point 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.
Omni Point 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. Omni Point shall remove recipients that have communicated a desire to unsubscribe from Omni Point’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 Omni Point’s sole discretion.
- Tracking and Reporting.
Except as otherwise expressly provided in the Invoice, Client shall provide to Omni Point 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 Omni Point under the terms of this Agreement. Client shall permit an Omni Point authorized representative to inspect such books of accounts and other documents during regular business hours upon ten (10) days’ notice from Omni Point. Such inspection shall be at Omni Point’s sole expense, unless the inspection reveals that the amounts due Omni Point exceed the amounts actually reported as due by Client (“Discrepancy”) by five percent (5%) or more, in which case Client shall pay to Omni Point the costs of the inspection revealing the Discrepancy. For any Discrepancy, Client shall pay to Omni Point the full amount of the underpayment, together with interest thereon at the rate of eighteen percent (18%) per annum.
- 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, Omni Point may, in its sole discretion, impose liquidated damages on Client in the amount of twenty-four cents ($.24), or if less, Omni Point’s then current undiscounted broadcast rate for each Opt-In Email Recipient to which Omni Point broadcasts under this Agreement. Such liquidated damages shall be instead of any fees payable under this Agreement.
- 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 Omni Point hereunder without Omni Point’s express prior written consent.
- Hardware, Software, and Database.
Omni Point 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 Omni Point’s hardware, software, or Opt-In Email Recipient database.
Client shall pay to Omni Point a fee as set forth in the Invoice upon receipt of said Invoice. Unless otherwise specified in the Invoice, Client shall pay each invoice in full prior to order fulfillment or within thirty (30) days of receipt, provided that client has an approved Omni Point credit application with net terms previously issued. Omni Point makes no warranty in connection with performance of any email broadcast, data purchase, lead generation program and/or services and therefore, Client shall have no right to offset or make deductions of any kind from the fees stated in the invoice. Client understands and agrees that no refunds are available for the intangible products and/or Services provided hereunder by Omni Point or a third party. If Client fails to timely pay the full amount of the charges detailed in any Omni Point invoice as set forth herein, Client agrees to pay all of Omni Point’s costs of collection of such charges, including without limitation Omni Point’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.
- Indemnification by Client.
Client shall indemnify, defend, and hold harmless Omni Point 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. Omni Point shall promptly notify Client in writing of all such claims and shall accommodate Client’s reasonable requests for cooperation and information. Omni Point shall agree to Client’s sole control over the defense and any settlement of such claims.
- No Other Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OMNI POINT MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE EMAIL BROADCASTS. OMNI POINT 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.
- 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 OMNI POINT UNDER THIS AGREEMENT.
- 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.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
- Relation of the Parties.
The Parties are independent contractors. There is no partnership, agency, or joint venture relationship between them. Omni Point, in it’s sole discretion, may use third party sub-contractors or vendors to fulfill the Services described herein, including but not limited to, fulfillment of the Services and/or use of media or electronic platforms in addition to and/or in lieu the original contracted work scope.
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.
- 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 Broward County, Florida.
- 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.
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.
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. This Agreement is subject to change at any time, and changes are effective upon posting. It is up to you to refer to this page for any amendments/changes to the original Agreement.
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 Broward County, Florida.
- Append Services
Within three (3) days of executing the Omni Point invoice (hereinafter the “Invoice”), by reference herein, Client shall deliver to Omni Point 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. Omni Point 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. Omni Point 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.
- Postal Rental Services.
“Information” refers to the mailing lists and/or data provided to Licensee. Licensee is defined as a company wishing to use Information for direct mail / telemarketing activities.
Licensee agrees to use “Information” in compliance with any and all applicable Federal and State laws, rules, and regulations, including but not limited to those concerning fax broadcasts, e-mail transmissions, and direct marketing. Licensee will abide by the current business practices respecting the privacy of consumers and will not imply to an individual that any specific information is known about that individual.
Licensee may rent Information for continual use within one year from the date of rental. Rental will be for one-time use for a single entity or company, unless otherwise designated. Except with written consent, Licensee shall not:
- Use or permit the use of Information for generating any statistical information which is sold, rented, published, furnished or in any manner provided to a third party;
- Use or permit the use of Information to prepare any comparison to other information data bases, which is sold, rented, published, furnished or in any manner provided to a third party;
- Use or permit the use of Information in connection with individual credit, employment or insurance applications. Publish, distribute or permit disclosure of the information, other than to employees and agents of the Licensee for internal use in the Licensees’ business;
- Use or permit use of Information for the purpose of compiling, enhancing, verifying, supplementing adding to, or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third party.
- Use or permit use of Information to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, weapons, or involving credit repair services. If User receives consumer “lifestyle” data with Information, such lifestyle data shall not be used in connection with any telemarketing activities. All marketing communications used in connection with Information shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient’s name and address; (ii) comply with all applicable federal and state laws, rules and regulations; and (iii) comply with all applicable privacy policies, ethical use and Fair Information Practices published by the Direct Marketing Association (“DMA”).
We do not warrant the comprehensiveness, completeness, or accuracy of Information. The Information is provided to licensee “as is” without guarantee, and we make no express or implied warranties, including without limitation, any express or implied warranties of merchantability or fitness for a particular purpose. We shall not be liable for any consequential, incidental, special damages, lost profits or any damages of a similar nature even if we have been advised of the possibility of such damages.