TERMS AND CONDITIONS
I. COPY APPROVAL
Advertiser must deliver to Data Octane/Sachs Strategies, LLC. (“SSLLC”) the content of the advertisement Advertiser is contracting SSLLC to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. If SSLLC is not given three (3) days notice of approval for broadcast, SSLLC will not be responsible for a broadcast going out later then clients desired broadcast date or time. No refunds or rebroadcasts will be issued. SSLLC requires a email, fax, or postal confirmation for broadcast approvals from client. All Copy shall be subject to SSLLC approval. SSLLC 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, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. By reserving this right, SSLLC shall not be legally obligated for any failure to advise the nature of any such Copy.
II. DETAILS OF BROADCAST AND SERVICE
Any email or mobile messages broadcast by SSLLC 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 SSLLC (or affiliate) database. Client gives SSLLC permission to drive traffic to desired website and or landing pages provided by client using owned, rented, or third party data. SSLLC also reserves the right to fix, change, or update the client’s creative/ad if needed into any format needed for traffic and or delivery. SSLLC will not be held responsible or liable for any unsatisfactory results or data sent by its staff, partners, or outsource company. If a client cancels a campaign or invoice after testing process has begun, client is subject to pay up to 18% of total invoice.
III. HARDWARE, SOFTWARE, TRACKING, AND DATABASE
SSLLC 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 SSLLC (or affiliate) database, hardware or software. All data is self-reported including email data, postal data, phone data, and all selects and information fields. Client acknowledges that SSLLC will not be held responsible for false information reported, accuracy of data, non-deliverables, and any tracking discrepancies of all data or broadcast.
Advertiser shall pay in full the fees charged by SSLLC on the invoice by the date due.
- If advertiser is doing an email campaign, payment is due before the broadcast.
- If advertiser is using SSLLC for HTML creative design, payment is due before any work is done.
- Terms must be approved by Management and is subject to credit check.
SSLLC does not offer refund of any type (see LIMITATION OF LIABILITY). If Advertiser fails to pay the full amount of the charges detailed in any SSLLC invoice 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 SSLLC’s cost of collection of such charges, including without limitation SSLLC reasonable attorneys’ fees if applicable.
V. 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 SSLLC invoice within thirty (30) days of such invoice, Advertiser shall pay SSLLC a Late Fee in the amount of 12% of the charges detailed in such SSLLC invoice.
VI. LIMITATION OF LIABILITY
SSLLC CANNOT GUARENTEE RESULTS. IN NO EVENT SHALL SSLLC BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF SSLLC’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 SSLLC UNDER THE INVOICE.
Advertiser shall indemnify, defend and hold harmless SSLLC 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. SSLLC shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information.
SSLLC MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADVERTISEMENTS, EXPRESS OR IMPLIED. THIRD PARTIES PROVIDE THE EMAIL ADVERTISEMENTS ON AN “AS IS” BASIS. SSLLC 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.
IX. CLIENT ACKNOWLEDGEMENT:
Client acknowledges that the data being rented or sold including email, postal, phone and any other fields or content is self reported and or has been delivered to SSLLC from a data partner. Client acknowledges that SSLLC is given full privilege to change or use any part of the html, images or urls to deliver and or generate traffic for the Client and or advertiser. SSLLC reserves the right to enhance traffic for the Client and or advertiser using any form of digital traffic available in house or with outsource partners at any time.
SSLLC will not be responsible for inaccuracy, complaints, blacklists, spam traps, domain or IP reputation, non-deliverables or any legal issues that might arise from usage or broadcast. Data is rented as is with no guarantee of quality, conversions or response. Client acknowledges the advertisement approved is their responsibility and Client should check all laws on data usage for the advertisement for their global, state and industry regulations.
X. 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.
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
XII. RELATIONSHIP OF THE PARTIES
The parties are independent contracting entities, and there is no partnership or agency relationship between them.
XIII. ENTIRE AGREEMENT
The Terms and Conditions described herein and in the invoice specifically incorporating these Terms and Conditions 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 Advertiser invoice, insertion order, or purchase order), the provisions of these Terms and Conditions shall govern. The waiver of any right, breach, or default shall not constitute a waiver of any other right or of any subsequent breach or default.
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 Maryland 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 held in Baltimore County, Maryland.
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.
The headings of these Terms and Conditions are for convenience only and shall not be used to construe the meaning of this Agreement.