TERMS & CONDITIONS

Customer agrees to these terms by entering into an Order Confirmation with Giant Partners, Inc. (“Company”), which owns and operates the website(s) GiantPartners.com, ListGiant.com and Via.Tools collects, uses, and shares personally identifiable information and non-personally identifiable information through the website and mobile applications it operates (collectively, the “Sites”) and the services, features, or content we offer (collectively with the Sites, the “Services”).

 

Company is Committed to Knowing its Customers. Customer is expressly prohibited from utilizing any of the Products to violate the law, directly or indirectly. Company reserves the right to audit new prospects and refuse the sale of its Products or other services to any Customer who Company suspects may be in violation of the law. Customer must ensure that it has well-documented consent or another legally sufficient exemption if Customer contacts wireless telephones or numbers on any national or state Do-Not-Call (“DNC”) database. Company expects its Customers to follow the law, but does not assume any responsibility for ensuring the compliance of Customer’s campaigns and communications.

 

Order Confirmation. Customer acknowledges and agrees that the Order Confirmation and these Terms and Conditions constitute the entire agreement (together, the “Agreement”) between the parties regarding the data, records, lists and/or products described therein (the “Product”) and supersede any and all agreements and understandings, oral and written, with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made which is not embodied in these Terms and Conditions, the Order Confirmation, or any other document, and no party shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. Furthermore, handwritten information on the Order Confirmation will NOT be deemed to be a part of the Agreement. Any additional terms will be in “Notes to Client” on Client’s Order Confirmation.  In the event of a conflict between the Order Confirmation and this Agreement, the terms of this Agreement shall govern unless the Order Confirmation references the specific Agreement provision being modified. The Order Confirmation will specify the applicable Product purchase tier and pricing.

 

Use of Product and Lists.  Customer is strictly prohibited from using Products in violation of the law or using source or origination information as part of Customer’s communications, including without limitation, by disclosing the name, identity or contact information of Company. NO EXCEPTIONS.

Disclosure of Proprietary Data. To the extent that either Company or Customer discloses proprietary data and information to the other pursuant to this Agreement, they each acknowledge and agree that: (a) the disclosing party claims and reserves all rights and benefits afforded proprietary information under law, (b) this Agreement and disclosure to the other does not effectuate any transfer of title or interest in or to any proprietary data or information of the disclosing party, and (c) the other party is granted only a limited right of use of such proprietary data and information as may be necessary for its performance hereunder.

Payment of Product. Unless expressly provided on the applicable Order Confirmation, Customer shall pay for all Product by credit card, ACH, or wire transfer in the amounts and at the times provided on the Order Confirmation. Customer hereby irrevocably authorizes Company to charge the credit card account that has been provided by Customer to Company. Recurring payments will be charged on or about the same day of month as first payment. If the billing day of month lands on a weekend or holiday, the payment will be normally be charged on the previous business day. In the event Customer fails to timely pay the full contract price under the terms of the Order Confirmation, Company shall, in addition to the other rights and remedies set forth herein, have the right to: (a) suspend Customer’s access to its website created by Company, (b) remove any and all website content created by Company, (c) delete Customer’s entire website containing intellectual properties created by Company, (d) replace Customer’s website designed by Company with Customer’s pre-existing website, and/or (e) terminate all work by Company for Customer in connection with any digital marketing program designed by Company, including without limitation, logos, landing pages, and email campaigns. In connection therewith, Company accepts no responsibility and shall have no liability for any reliance by Customer on the continued availability of any content or resources on Customer’s website.

Company Representations and Warranties. Company represents and warrants to Customer that:

  1. to the extent applicable, Company will adhere to state data privacy laws, will safeguard all consumer data and will not use the same for any purpose not contemplated and authorized herein;
  2. any work or materials produced or provided pursuant to this Agreement: (i) shall be free from computer viruses introduced into the software as a result of the negligence or intentional acts of Company and that the software will be free of software traps, viruses, worms, or code (including any undisclosed disabling device or code ) which would interfere with the intended use of the software in accordance with the specifications or which destroy or alter Customer’s data, files, or systems and (ii) shall not infringe upon or violate any patent, trademark, copyright, trade secret or any other intellectual property rights of any third party;
  3. its work under this Agreement shall be of professional quality consistent with industry standards and expectations for work of a similar nature;
  4. it has the right to enter into and perform its obligations under this Agreement and such performance will not breach any other agreement by which it is bound; and
  5. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT AND SERVICES PROVIDED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Customer Representations and Warranties. Customer represents and warrants to Company that:

  1. to the extent applicable, Customer will adhere to state data privacy laws, will safeguard all consumer data and will not use the same for any purpose not contemplated and authorized herein;
  2. it has the right to enter into and perform its obligations under this Agreement and such performance will not breach any other agreement by which it is bound;
  3. it understands that Company is not affiliated with search engines, including without limitation, Google, Yahoo, Bing, Ask and MSN and therefore, Company will not be held responsible for search engine policy, structure or algorithm changes;
  4. Company has the right to use Customer’s name, Customer’s domain name, Customer’s logo and Customer’s keyword rankings on websites, case studies and other marketing materials;
  5. if contacted by an existing customer or potential customer of Company, Customer will not disclose terms of this Agreement including but not limited to pricing, pricing structure, and agreement term;
  6. it will not name or refer to Company in any of Customer’s advertisements, promotional or marketing materials; and
  7. it will use the Product and other goods and services of Company in full compliance with the law and then-current industry best practices.
  8. It will not violate the law when making use of the Products and associated data.

Compliance with Applicable Laws. Customer acknowledges and agrees that: (a) it is not relying any legal advice or recommendations from Company in connection with the use of the Product and (b) all Product which Customer receives under the Order Confirmation shall be used only in strict compliance with all applicable Federal, State, and local laws, rules, regulations and ordinances, including without limitation, those concerning privacy, telephone solicitations, email solicitations, fax transmission and other forms of direct marketing, including without limitation: (i) the Federal Fair Credit Reporting Act; (ii) the Gramm, Leach, Bliley Privacy Act; (iii) the Do-Not-Call Implementation Act of 2003; (iv) the Telephone Consumer Protection Act of 1991; (v) the Federal Trade Commission Act; (vi) the Telemarketing Sales Rule; (vii) the Children’s Online Privacy Protection Act; (viii) the California Consumer Privacy Act, as amended, and all other state data privacy and consumer protection laws. Customer agrees that it is Customer’s sole responsibility to determine the applicability of the same. Company does not knowingly collect or sell the data of minors under the age of 18.

Cancellation and Termination Policy.

  1. Email and Data Orders:
    • Customer acknowledges that all Product orders require the Company to create a custom product specifically for the Customer. Therefore:
      • (a) No returns or reimbursements for the Product will be made.
      • (b) Customer is responsible for the full payment of each custom order.
      • (c) This financial responsibility remains binding and will not be released due to any of the following: (i) Customer rejecting the order, (ii) refusing to accept shipment, (iii) stopping payment on its check, (iv) requesting its credit card company to charge back or reverse the transaction, or (v) changing the nature of the order, unless otherwise specified in the “Note to Customer” on the Order Confirmation (OC).
  2. VIA.tools and Portal Orders:
    • If a customer elects to terminate the agreement before the end of the specified term, an early termination fee of 50% of the remaining balance is due, as outlined on the Order Confirmation. VIA-related products and payments are otherwise non-returnable and non-refundable.
  3. Digital Marketing Services:
    • For digital marketing services provided by Company to Customer, this Agreement will automatically renew at the end of the Term. Opt-out from services must be provided in writing by sending an email to compliancesupport@giantpartners.com. Customer’s opt-out term and any other pertinent information pertaining to digital campaigns is explicitly stated in the “Notes to Client” section of Customer’s Order Confirmation.
    • Once the stated Term has been reached, Customer may then provide written opt-out notice. If Customer cancels prior to the opt-out Term, Customer will be responsible for payments until the opt-out period concludes.
    • Payment amounts may be adjusted for service changes and one-time projects upon Customer’s request.

Disclaimer of Warranties. Customer acknowledges and agrees that: (a) all Product and other goods and services are provided by Company on an “AS IS” basis, (b) no liability is assumed by Company for the accuracy, completeness, condition, suitability or performance of any Product and information provided hereunder, (c) output fields are subject to change without notice, (d) all representations and warranties, express or implied, relating to any such goods or services, including all warranties of merchantability and fitness for a particular purpose, their quality, their security, or their non-infringement are hereby disclaimed, (e) due to the fact that data products can be copied easily, no order will be returned or accepted for credit or otherwise, unless first approved in writing by Company, (f) although industry averages may be quoted by representatives from time to time, individual results vary, and thus, except as expressly provided in this Agreement, no guarantee whatsoever is given for any results from the use of Product sold or services provided, (g) Company will not be responsible for any records that are selected incorrectly and/or downloaded improperly by Customer, (h) any and all records downloaded from the “VIA” (as hereunder defined) will be deducted from the amount of records purchased as set forth on the Order Confirmation, (i) Company will not be held liable for any records that are downloaded in error, (j) should at any time Customer does not completely understand how to use the VIA, Customer shall notify Company to seek supplemental training, and (k) the “Limitation of Liability” section set forth below shall govern the rights of the parties hereto.

Limitation of Liability. Customer agrees, understands, and expressly acknowledges that: (a) when Company rents or sells Product, Company assumes no responsibility of any kind for defects, deficiencies, mistakes, ambiguities or inaccuracies of any kind or effect with respect to the Product and (b) while Company believes its information to be accurate, it does not, except as otherwise expressly provided in the Order Confirmation, warrant or guarantee any degree of accuracy of the Product rented, nor the outcome or results of any mailing or promotion or any other undertaking of Customer, and Company shall not be held liable in any manner with respect thereto. In all events, any liability hereunder or otherwise of Company and its representatives shall be limited to the amount paid by Customer for Product within the twelve (12) months preceding the event which gives rise to liability. Customer acknowledges and agrees that Company shall not be liable for indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business, loss of profits or investment or the like) whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if Company or its representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. The limitations of liability set forth herein are fundamental elements of the basis of the bargain between Company and Customer, and Customer acknowledges and agrees that Company would not, under any circumstances, provide its goods and services without such express limitations.

Indemnification. Customer agrees to defend, indemnify and hold harmless Company, its subsidiaries and affiliates, and their respective owners, officers, directors, agents, and employees from and against any loss, damage, expense, or cost, including reasonable attorneys’ fees, arising out of or related to: (a) Customer’s act or omission that constitutes a breach or an alleged breach, or the breach or alleged breach of any person or entity to whom Customer may sell Product (if permitted hereunder), of any covenant, duty, representation, or warranty of Customer under this Agreement and (b) any claim that Company’s use of Customer’s trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party. Company shall not be liable to Customer, or to anyone who may claim any right, due to the parties’ relationship, for any acts or omissions in the performance of said services on the part of Company or on the part of its owners, agents, officers, directors, employees or assigns which result from the delivery of services made to Customer by Company and its agents, officers, directors, employees or assigns, unless said acts or omissions of Company or its agents, officers, directors, employees or assigns are due to gross negligence or willful misconduct. Customer agrees to reimburse Company, for all expenses, including reasonable attorneys’ fees incurred, to enforce the terms and conditions of this Agreement, collect payments due hereunder, and defend against claims or actions by any person or entity arising from Customer’s breach or alleged breach hereunder. These indemnification provisions shall survive the expiration or termination of this Agreement.

 

Communications are Recorded and Monitored. As disclosed when you call our office, all calls may be recorded or monitored. Customer understands and agrees that Company may record and monitor any calls, text messages, web or video chat sessions, or other communications Client engages in with Company or its employees or contractors, regardless whether Client or Company initiated the contact.  Do not contact us or do business with us if you do not agree to such recording and monitoring.  Additionally, our websites may record your interactions with them. Do not make any use of our websites if you do not consent to the same.

VIA.tools and Portal (hereinafter referred to as “VIA,” applicable only to VIA.tools and Portal-related orders)
VIA Term, Blocks, and Subscriptions. Regarding any VIA-related orders, all Products rented hereunder may be used by Customer on a confidential basis for the shorter of: (a) the period set forth on the applicable Order Confirmation or (b) twelve (12) months from the date of rental to Customer (the “Term”). Without the prior written consent from Company (which may be granted or withheld at Company’s sole discretion), Customer shall not: (i) re-rent or re-sell any Product or otherwise permit any use of Product by or for the benefit of any party other than Customer; (ii) publish, distribute or permit disclosure of any Product, other than to employees and agents of Customer on a need-to-know basis for use in Customer’s business; (iii) use or permit use of any Product for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade 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; (iv) use or permit use of Product for the generation of any statistical information which is sold, rented, published, furnished or in any manner provided to a third party; (v) use or permit use of any Product to prepare any comparison to other information databases, which is sold, rented, published, furnished or in any manner provided to a third party; or (vi) use or permit use of any Product in connection with individual credit, employment or insurance applications.

 

VIA Unused Records. Customer understands that this Agreement expires at the end of the Term and any unused records that have not been downloaded may expire or be deleted on said date. Customer should use/download all records before the end of the Term. Company makes no representation about its ability to store records after termination of the Agreement.

 

VIA Expense Reimbursement. For Product accessed on the “VIA” and “White Label Product” (each as defined below), Customer shall reimburse Company for Product that is accessed and has not been paid for pursuant to the Order Confirmation at the rate of 2.5 cents ($0.025) per record to be billed when and as accessed and shall be paid by Customer within five (5) business days thereafter.

 

VIA Delivery of Product. Unless specified on the applicable Order Confirmation, during the Term, Company grants to Customer a non-exclusive, non-transferable license to access the Company’s website VIA (the “VIA”) to run counts and access the Data as provided in this Agreement and any documentation related thereto. Customer expressly agrees that such access to the VIA is for the sole use of Customer and it will not assign, license, distribute, or otherwise transfer any of its rights under this Agreement to any other person, firm, corporation, or other organization without the prior written consent of Company which may be granted or withheld at Company’s sole and unfettered discretion.

 

VIA White Label Use. For orders of Product designated as “White Label” on the applicable Order Confirmation, Customer agrees to explain and direct to its clients how to access Product through the White Label platform. Customer agrees for itself and on behalf of its clients that they are fully versed on and agree to adhere to all current FTC, FCC, State and Local laws that pertain to the use of White Label Product. Customer is responsible for all data costs associated with Customer’s White Label instance. In connection with the White Label VIA, Company’s identity shall remain confidential for goods and services rendered by Company that are rented by Customer to rebrand and sell as its own.

VIA Uptime Guarantee. Notwithstanding anything contrary contained in this Agreement, Company offers a service uptime guarantee for the VIA, which provides for a credit to Customer (as specified below) if, through the negligent act or omission of Company, the total availability of Product falls below ninety-seven percent (97%), that is, access to Product through the VIA by Customer is guaranteed for at least 354 days per calendar year (“Uptime”). If Customer can demonstrate to Company’s reasonable satisfaction that Company has failed to maintain the Uptime, Customer may contact Company and request a credit for that month proportional to the amount of downtime, to be applied towards the purchase of future goods and services. Credits cannot be redeemed for cash, credit card refunds, or data, and are exclusive of any applicable taxes. Notwithstanding anything contrary in this Uptime Guarantee section, the credit does not apply to service interruptions caused by: (a) periodic scheduled maintenance or repairs undertaken by Company from time to time; (b) downtime caused by Customer; (c) outages that do not limit manual data pulls (for example, interruptions that do not prevent Company from manually pulling requested data and delivering electronically); (d) suspension of Customer’s account due to legal action taken or threatened against Customer or Customer’s services; (e) suspension of Customer’s account due to suspected or actual legal violations, as determined by in Company’s sole discretion, including without limitation, excessive use of system resources, non-payment or other billing issues, or identification by the abuse team as fraudulent or otherwise in violation of this Agreement or the law; or (f) causes beyond the control of Company or that are not reasonably foreseeable by Company, including acts of God/Force Majeure.

For use of Product comprised of phone numbers and email addresses, Customer also agrees as follows:

PHONE NUMBERS (this section only applies to phone acquisition orders)  Even in the event that Company elects to provide DNC suppression/scrubbing at Customer’s request, Company makes no representations whatsoever regarding whether a number is on a DNC database. Customer must obtain and pay for its own subscription account number (“SAN”) and equivalent state registrations. Company assumes no responsibility to ensure that leads provided as part of the Products do not include numbers on a DNC database.

EMAIL ADDRESSES (this section only applies to email acquisition) Customer agrees that any use of any Product to send email messages will be in compliance with all applicable Federal and State laws, including the CAN-SPAM Act of 2003 and Customer’s own privacy policies. If Customer uses any Product to send email messages, such compliance by Customer must, at a minimum, include: (a) accurate header (“from” and “to”) information; (b) accurate subject lines; (c) the sender’s actual mailing address; (d) clear identification of the email message as an advertisement, if that is the case; (e) an opt-out notice with a functioning opt-out mechanism via email or the Internet which is operational for at least 30 days after sending the message; and (f) honoring opt-out notices within ten (10) business days of receipt of each opt-out request. Subject to the terms and conditions of this Agreement, if Customer resells, shares, rents or transfers any Product, such compliance must, at a minimum, include prohibiting reselling, sharing, renting or transferring the email addresses of recipients who have opted out of receiving email messages. CUSTOMER FURTHER AGREES NOT TO SELL, SHARE, RENT OR TRANSFER DATA TO OR WITH ANY PERSON OR ENTITY WHICH DOES NOT AGREE TO USE DATA IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL LAWS, INCLUDING THE CAN-SPAM ACT OF 2003, AND WITH ITS OWN PRIVACY POLICIES. For email data purchased from Company which Customer chooses to deploy themselves, Customer acknowledges that they understand some third-party email deployment services do not permit deployment of purchased email data. It is highly recommended that Customer check with its internet service provider and its email deployment company, especially, but not limited to, companies such as Mail Chimp, Constant Contact and iContact (by way of example), before deploying any type of email advertisements, announcements, or other correspondence of any type regardless of its relationship with email recipients. Company will not be held liable for any issues arising as a result of Customer’s third-party email deployment service. Company guarantees a valid email address rate of 90% and a hard bounce rate of 5% or less so long as: (i) data is deployed by client within five (5) business days of receipt of data from Company and (ii) Customer uses a third party email deployment service that allows for purchased emails to be used. Any requests for hard bounce replacements must be provided within fifteen (15) days of data delivery. The request must include the hard bounced emails and a delivery report proving the hard bounces. Although Company endeavors to provide quality products and services, there shall be no liability or responsibility for the success of Customer’s email campaign due to factors beyond the reasonable control of Company including but not limited to: (A) tracking and quantifying the success of Customer’s campaign; (B) the look and feel of Customer’s creative; and (C) deployment strategies, etc. Due to these factors, it is recommended that Customer have Company deploy email campaigns to track bounces, open rates, click-through to website offers, etc. Email deployments are subject to use of supplemental advertising based on the discretion of Company’s email team. Customer is allowing Company to use the creative design that Customer has supplied or approved, plus alternate, similar versions Company produces for backfill sources, including but not limited to, Yahoo Gemini, Gmail Ads, and Social Ads (Facebook/Instagram). Simultaneously with deploying Customer’s email campaign, Company’s backfill sources will target the same geography identified by Customer’s campaign, but demographics will be expert-selected to maintain the integrity of Customer’s targeting.

DIGITAL MARKETING SERVICES (this section only applies to digital marketing orders)

Marketing Content. Certain services may include a file management library allowing Customer to store and access certain marketing creative (e.g. logos, email creative, images) and other documents (collectively, “Marketing Content”) for Customer’s internal use. Any such Marketing Content and art will remain Customer’s property; however, Customer grants Company a non-exclusive right to host, store, and to allow access to Customer’s users. Customer is solely responsible for ensuring that it has all necessary rights and licenses to the Marketing Content and to use that Marketing Content in connection with the services. Company is not responsible for actions Customer takes with respect to Customer’s Marketing Content. Customer agrees to not upload Marketing Content that, or otherwise use the services, to: (a) violate the intellectual property rights of any third party; (b) engage in or promote illegal activity; or (c) distribute viruses, worms, or other malware or malicious software. Company reserves the right to delete or disable content alleged to violate the foregoing; however, Company has no obligation to monitor or review Customer’s Marketing Content. Customer acknowledges that any file management library is made available for Customer’s convenience and is not intended to be used as a data backup service or in connection with disaster recovery. Customer is responsible for maintaining independent copies of all Marketing Content, including backup copies. Marketing Content is subject to deletion upon termination.

 

Third Party Services. All software and platform fees will be paid by Customer directly to providers (CRM, Chat, Webinar, Hosting, Domains, Integrations, Automations, PRWire,Other).

 

Ad Spend. For those Customers who company agrees to provide it, ad spend is blended between web search and social media, and paid directly by Customer to advertising channels (Facebook Ad Manager, Google Ad Manager, LinkedIn Ad Manager, Bing Ad Manager, Twitter Ad Manager, etc.). 

 

Data Use. Unless otherwise specified, if Customer is supplied with postal addresses, phone numbers or email addresses for a marketing campaign conducted/deployed by Company, said information is for Customer’s internal use only.

 

Shared Custom Audience Data (this section only applies to shared custom audience data)

Access to and use of Shared Custom Audience Data provided by Company is conditional upon maintaining an active account in good standing. “Shared Custom Audience Data” refers to data segments created by [Company Name] that are made available to clients to enhance targeting capabilities, audience reach, and marketing effectiveness.

  • Active and Good Standing Requirement: Access to Shared Custom Audience Data is provided exclusively while your account remains active and complies with all financial, contractual, and policy obligations. Accounts must be current on payments, free from disputes, and in full compliance with our Terms and Conditions to maintain access to this data.
  • Suspension or Termination of Access: In the event of account suspension, delinquency, or termination, access to all Shared Custom Audience Data will be immediately revoked. [Company Name] reserves the right to restrict or deny access to this data if any conditions of account standing or policy adherence are unmet.
  • No Guarantee of Continuity: Access to Shared Custom Audience Data does not constitute a permanent right or guarantee, as it may be contingent on ongoing data availability, compliance with third-party policies, and evolving regulatory requirements.
  • Data Usage Compliance: While utilizing Shared Custom Audience Data, you agree to adhere to all applicable laws, regulations, and our Data Usage Guidelines. Misuse of this data, or violation of our terms, may result in immediate suspension of data access and potential legal consequences.

 

Notices and Other Communications Any notice made in accordance with this Agreement shall be: (i) sent by certified mail or by recognized national overnight courier or express mail, (ii) effective upon receipt, and (iii) addressed to:

If to Customer:

As set forth on the Order Confirmation:
Customer Shipping Address
Customer Contact Person

If to GP:

Giant Partners, Inc.
1461 Lawrence Dr, 2nd Floor
Thousand Oaks, CA 91320
Attn: Sheldon Katz, COO

Arbitration, Class Action Waiver and Governing Law Any dispute, controversy or claim arising out of or relating in any way to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach hereof, shall be exclusively resolved by binding arbitration upon a party’s submission of the dispute to arbitration. In connection therewith:

  1. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, management level representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
  2. This Agreement to arbitrate shall be specifically enforceable. A party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration.
  3. CUSTOMER WAIVES ANY RIGHTS THEY MAY HAVE TO HAVE DISPUTES LITIGATED IN A COURT, TO A TRIAL BY JURY, AND ANY RIGHTS THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION IN ANY DISPUTE RELATING TO OR ARISING FROM THIS AGREEMENT.
  4. The arbitration shall be conducted by one arbitrator. If the parties are not able to agree upon the selection of an arbitrator, within twenty (20) days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association in accordance with the terms of this Agreement.
  5. The arbitrator shall have ten (10) years of experience in contract dispute resolution and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration.
  6. The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association.
  7. The arbitration shall be conducted in Ventura or Los Angeles Counties, California.
  8. The laws of the State of California shall be applied in any arbitration proceedings (without regard to principles of conflict of laws) which shall be applied by the arbitrator in rendering a final decision.
  9. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.
  10. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
  11. The parties shall be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than one thousand (1,000) pages of documents and to take three (3) depositions not to exceed eight (8) hours for each such deposition. Any party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the fees of such expert during such deposition. In addition to the foregoing, any party shall be entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable to testify at the hearing to preserve such witness’ testimony for the arbitration hearing.
  12. The parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness ten (10) days before the arbitration hearing.
  13. The arbitrator shall have no authority to award punitive, consequential, special or indirect damages. The arbitrator shall not be entitled to issue injunctive and other equitable relief. The arbitrators shall award interest from the time of the breach to the time of award at the prejudgment interest rate under the California Civil Code. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to these arbitration provisions by bringing suit in any court of competent jurisdiction.
  14. These arbitration provisions shall survive the termination or cancellation of this Agreement.
  15. Notwithstanding anything to the contrary in this Arbitration section, if any claim or dispute falls within the jurisdiction and limits of small claims court, in lieu of Arbitration, either party may pursue resolution of such claim or dispute in the Small Claims Division of Ventura County Superior Court.

 

MISCELLANEOUS 

 

Amendments. No modifications of this Agreement may be made unless they are in writing and hand or digitally signed by a duly authorized officer of the party to be charged.

 

Time Being of the Essence. Time is expressly declared to be the essence hereof, and it is specifically agreed that no waiver of any breach or default by Customer shall be deemed a waiver of any breach or default thereafter occurring.

 

Counterparts. This Agreement may be executed in electronically transmitted portable document format and may be in any number of counterparts each of which shall be deemed an original of the same document.

 

Authority. The person signing this Order Confirmation on behalf of Customer represents and warrants that: (i) he or she is duly authorized and has the legal capacity to execute and deliver this Order Confirmation and the related Terms & Conditions on behalf of Customer, (ii) the execution and delivery hereof and the performance of Customer’s obligations hereunder have been duly authorized, and (iii) this Order Confirmation and the related Terms & Conditions is a valid and legal agreement binding on Customer and enforceable in accordance with its terms.

For proper credit, please send the remittance form with payments. A finance charge of 1.5% per month shall be added to the balance due if the account is not paid within thirty (30) days from the invoice date.

 

ACCEPTANCE OF THIS ORDER CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS

These terms and conditions supplement and are made a part of the Order Confirmation between Customer and Company as if fully set forth therein.

ORDER CONFIRMATION

Customer acknowledges and agrees that the Order Confirmation and these Terms and Conditions constitute the entire agreement (the “Agreement”) between the parties regarding the data, records, lists and/or products described therein (the “Data”) and supersede all agreements and understandings, oral and written, with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made which is not embodied in these Terms and Conditions or in the Order Confirmation, and no party shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein. Furthermore, handwritten information on the Order Confirmation will NOT be deemed to be a part of the Agreement between the parties. All Data supplied in conjunction with signed agreements are good for up to one (1) year after the date executed unless otherwise specified on the Order Confirmation. Note: all unused Data (records) after the said expiration period will not be accessible. Company strives to provide accurate lists above industry standards in accuracy. Company will replace data below 94% postal deliverability and 82% phone connection rate. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO REPRESENTATIONS OR WARRANTIES THAT EXTEND BEYOND THE FOREGOING.

NO LEGAL ADVICE; COMPLIANCE WITH APPLICABLE LAWS

Customer acknowledges and agrees that: (i) it is not relying any legal advice from Company in connection with the use of the Data and (ii) all Data which Customer receives under the Order Confirmation shall be used only in strict compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances, including but not limited to those concerning privacy, telephone solicitation, e-mail solicitation, fax broadcasts and direct marketing. Customer understands that any person violating such laws may be subject to civil and criminal penalties. Customer acknowledges and agrees that it is Customer’s sole responsibility to determine the applicability of any such laws, rules, regulations and ordinances. Without in any way limiting the generality of the foregoing, there shall be no responsibility or liability upon or of Company for determining whether phone numbers on its lists may be registered under federal and/or state “Do Not Call” laws or other laws governing telemarketers, and Customer shall be fully responsible for compliance therewith in connection with the use of Data rented hereunder. Customer represents and warrants that any and all actions taken by Customer shall be in compliance with the provisions of all applicable laws and regulations and that Company shall have no liability whatsoever for any actions done or performed, or caused to be done or performed by Customer, and Customer agrees to indemnify and hold Company harmless therefrom.

At all times Customer shall fully comply with all applicable federal, state and local laws or regulations affecting or arising from the Data rental pursuant hereto, including without limitation: (a) the Federal Fair Credit Reporting Act; (b) the Gramm, Leach, Bliley Privacy Act; (c) the Do-Not-Call Implementation Act of 2003; and (d) the Telephone Consumer Protection Act of 1991. Customer agrees to defend, indemnify and hold harmless Company, its subsidiaries and affiliates, and their respective officers, directors, agents, and employees against any loss, damage, expense, or cost, including reasonable attorneys’ fees (including allocated costs for in-house legal services) arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party based on: (i) any act or omission that constitutes a breach of any covenant, duty, representation, or warranty of Customer under this Agreement, and (ii) any claim that Company’s proper use of the Customer trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party. The provisions of this Agreement shall survive the expiration or termination of this Agreement.

USE OF EMAIL DATA

Customer agrees that any use of Data will be in compliance with all applicable state and federal laws, including the CAN-SPAM Act of 2003 and Customer’s own privacy policies. If Customer uses any Data to send e-mail messages, such compliance by Customer and its transferees must, at a minimum, include: (1) not using forged, false or misleading header information; (2) not using false or misleading subject lines; (3) including the sender’s physical address (not a P.O. box); (4) clearly identifying the e-mail message as an advertisement; (5) providing an opt-out notice with a functioning opt-out mechanism via e-mail or the Internet which is operational for at least 30 days after sending the message; (6) honoring opt-out notices within ten (10) business days of receipt of each opt-out request; and (7) for e-mail messages with sexually explicit material, including a warning in the subject line and requiring an additional step to view the material after opening the message. If Customer resells, shares, rents or transfers this Data, such compliance must, at a minimum, include prohibiting reselling, sharing, renting or transferring the e-mail addresses of recipients who have opt-ed out of receiving e-mail messages. CUSTOMER AGREES NOT TO SELL, SHARE, RENT OR TRANSFER THIS DATA TO OR WITH ANY PERSON OR ENTITY WHICH DOES NOT AGREE TO USE THIS DATA IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL LAWS, INCLUDING THE CAN-SPAM ACT OF 2003, AND WITH ITS OWN PRIVACY POLICIES. Customer agrees to indemnify Company, its clients, owners, officers, partners, members, managers, employees, agents, subsidiaries, and their respective successors and assigns, against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or related to Customer’s breach or alleged breach, or the breach or alleged breach of any person or entity to whom Customer may have sold the Data, of the promises and obligations herein. For email Data purchased from Company which Customer chooses to deploy themselves, Customer acknowledges that they understand some third party email deployment services do not permit you to deploy purchase email Data. It is highly recommended that Customer check with its internet service provider and its email deployment company before deploying any type of email advertisements, announcements, or other correspondence of any type regardless of its relationship with email recipients. Although Company endeavors to provide quality products and services, there shall be no liability or responsibility for the success of Customer’s email campaign due to factors beyond the reasonable control of Company including but not limited to: (a) tracking and quantifying the success of Customer’s campaign; (b) the look and feel of Customer’s creative; and (c) deployment strategies; etc. Due to these factors, it is recommended that Customer have Company deploy email campaigns to track bounces, open rates, click-through to website offers, etc.

USE OF DATA AND LISTS

Customer represents and warrants that: (i) he/she/it is a merchant as understood and defined in the Uniform Commercial Code of the State(s) in which it operates, (ii) the Data rented hereunder is to be used for a one-time use only, and (iii) no record in the Data, including without limitation names, addresses, etc., will be retained or duplicated. Additionally, Customer is strictly prohibited from using source or origination information regarding any rented Data as part of Customer’s telephonic presentation or printed mail piece, including without limitation disclosing the name, identity or contact information of Company. NO EXCEPTIONS.

RENTAL TERM

The Data rented hereunder may be used by Customer for confidential use for a period not exceeding six (6) months from the date of rental to Customer. Without the prior written consent from Company, Customer shall not: (i) re-rent the Data or otherwise permit any use of the Data by or for the benefit of any party other than Customer; (ii) publish, distribute or permit disclosure of the Data, other than to employees and agents of the Customer on a need-to-know basis for use in Customer’s business; (iii) use or permit use of the Data for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade 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; (iv) use or permit use of the Data for the generation of any statistical information which is sold, rented, published, furnished or in any manner provided to a third party; (v) use or permit use of the Data to prepare any comparison to other information databases, which is sold, rented, published, furnished or in any manner provided to a third party; or (vi) use or permit use of the Data in connection with individual credit, employment or insurance applications.

NO REFUNDS OR RETURNS

Customer acknowledges that all Data orders received from Customer require Company to create a custom product for Customer. Accordingly, Customer agrees that: (i) no returns of Data or reimbursements therefore will be made; (ii) Customer is responsible for the full payment of such custom order; and (iii) such financial responsibility shall not be released due to any of: (a) Customer rejecting said order, (b) refusing to accept shipment, (c) stopping payment on its check, (d) requesting its credit card company to charge back or reverse the transaction or (e) changing the nature of the order, etc.

DISCLAIMER AND WARRANTIES

All Data and other goods and services are provided ”AS IS” and all representations and warranties, express or implied, relating to any such goods or services, including their fitness for a particular purpose, their quality, their security, their merchantability or their non-infringement are hereby disclaimed. Due to the fact that Data products can be copied easily, no order will be returned or accepted for credit or otherwise unless first approved in writing. Customer further understands that although industry averages may be quoted by representatives from time to time, individual results vary. Accordingly, no guarantee whatsoever is given for any results from the use of products sold or services provided. In connection therewith, Customer acknowledges and agrees that the “Limitation of Liability” section below shall govern the rights of the parties hereto.

LIMITATION AND LIABILITY

Customer agrees, understands, and expressly acknowledges that: (i) when Company rents Data to any person or entity including Customer, Company neither assumes nor accepts any responsibility of any kind for defects, deficiencies, mistakes, ambiguities or inaccuracies of any kind or effect with respect to Data rented pursuant hereto; and (ii) while Company believes its information to be accurate, it does not, except as otherwise expressly provided in the Order Confirmation, warrant or guarantee any degree of accuracy of the Data rented, nor the outcome or results of any mailing or promotion or any other undertaking of Customer, and Company shall not be held liable in any manner with respect thereto. In all events, any liability hereunder or otherwise of Company and its representatives shall be limited to the amount paid by Customer for the applicable list and no more. Customer acknowledges and agrees that Company shall not be liable for indirect, special, incidental or consequential damages (including, but not limited to, damages for loss of business, loss of profits or investment or the like) whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if Company or its representatives have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. The limitations of liability set forth herein are fundamental elements of the basis of the bargain between Company and Customer, and Customer acknowledges and agrees that Company would not, under any circumstances, provide its goods and services without such express limitations.

INDEMNIFICATION

Company shall not be liable to Customer, or to anyone who may claim any right, due to the parties’ relationship, for any acts or omissions in the performance of said services on the part of Company or on the part of its agents, officers, directors or employees or assigns which result from the delivery of services made to Customer by Company and its agents, officers, directors, employees or assigns, unless said acts or omissions of Company or its agents, officers, directors, employees or assigns are due to gross negligence or willful misconduct. Customer agrees to reimburse Company, for all expenses, including reasonable attorneys’ fees incurred, to enforce the terms and conditions of this Agreement, collect payments due hereunder, and defend against claims or actions by any person or entity arising from Customer’s breach or alleged breach hereunder.

ARBITRATION, CLASS ACTION WAIVER AND GOVERNING LAW

Any dispute, controversy or claim arising out of or relating in any way to this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach hereof, shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. In connection therewith: (a) In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach. (b) This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration. (c) THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO HAVE DISPUTES LITIGATED IN A COURT, TO A TRIAL BY JURY, AND ANY RIGHTS THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION IN ANY DISPUTE RELATING TO OR ARISING FROM THIS AGREEMENT. (d) The arbitration shall be conducted by one arbitrator. If the Parties are not able to agree upon the selection of an arbitrator, within twenty (20) days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association in accordance with the terms of this Agreement. (e) The arbitrator shall have ten (10) years of experience in contract dispute resolution and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration. (f) The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association. (g) The arbitration shall be conducted in Ventura County, California. (h) The laws of the State of California shall be applied in any arbitration proceedings (without regard to principles of conflict of laws) which shall be applied by the arbitrator in rendering a final decision. (i) It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award. (j) Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. (k) The Parties shall be entitled to discovery in the arbitration except that any Party shall be entitled to request no more than one thousand (1,000) pages of documents and to take three (3) depositions not to exceed eight (8) hours for each such deposition. Any Party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition. In addition to the foregoing, any Party shall be entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable to testify at the hearing to preserve such witness’ testimony for the arbitration hearing. (l) The Parties shall exchange a copy of all exhibits for the arbitration hearing and shall identify each witness who will testify at the arbitration, with a summary of the anticipated testimony of such witness ten (10) days before the arbitration hearing. (m) The arbitrator shall have no authority to award punitive, consequential, special or indirect damages. The arbitrator shall not be entitled to issue injunctive and other equitable relief. The arbitrators shall award interest from the time of the breach to the time of award at the prejudgment interest rate under the California Civil Code. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to these arbitration provisions by bringing suit in any court of competent jurisdiction. These arbitration provisions shall survive the termination or cancellation of this Agreement. (n) Each party shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

MISCELLANEOUS

No modifications of this Agreement may be made unless they are in writing and hand signed by a duly authorized officer of the party to be charged. Time is expressly declared to be the essence hereof, and it is specifically agreed that no waiver of any breach or default by Customer shall be deemed a waiver of any breach or default thereafter occurring.

For proper credit, please send the remittance form with payments. A finance charge of 1.5% per month shall be added to the balance due if the account is not paid within thirty (30) days from the invoice date.

ACCEPTANCE OF AN ORDER CONSTITUTES THESE TERMS AND CONDITIONS

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