General Terms and Conditions
General Terms and Conditions
The following General Terms and Conditions (“Terms and Conditions”) will apply, and are hereby incorporated by reference, to all transactions between First Direct, Inc., a Nebraska corporation (the “Company”), and any person or entity (collectively, “Customer”) that receives products and/or services provided by Company to Customer (“Products/Services”), including, without limitation, any transactions conducted (i) pursuant to a Work Order (“Work Order”) or Invoice (“Invoice”) provided to Customer by Company, (ii) through any affiliated website of Company, (iii) through nationallistcounts.com or (iv) pursuant to a net term account via e-mail. The Terms and Conditions, Work Orders, and Invoices are collectively referred to herein as this “Agreement.” Company and Customer are individually referred to herein as a “Party” and together as the “Parties.”
Reporting and Payment Conditions
If requested by Company, Customer shall (i) provide a usage report to Company no later than the fifteenth (15) day of each month detailing the actual number of impressions served or data usage of Products/Services by Customer or its customers during the prior month and (ii) provide Company with any Products/Services intended to be distributed by Customer or its customers via mail, email, telemarketing or other electronic communication.
Unless otherwise stated in writing, all Invoices from Company to Customer are due upon receipt and may require full or partial payment before a project starts, and Customer agrees to pay, on receipt or per terms indicated. Company reserves the right to add finance charges on past due invoices and balances at the rate of the greater of $5.00 or 1.5% per month (18% APR), unless such amount would violate any applicable usury law, in which event such unpaid amounts shall bear interest at the highest rate then allowed by such law. Should Company need to take any action to collect past due amounts, Customer shall reimburse Company for any actual expenses incurred in the collection, including reasonable attorney’s fees. Pricing may not include applicable sales tax, and/or shipping, unless otherwise noted.
Customer shall be responsible for and confirm the accuracy, completeness, and propriety of information concerning its products and services that Customer has furnished to Company, including confirming that Customer is not in violation of any applicable law or contract regarding such information (the “Customer Accuracy Obligations”). Customer agrees to indemnify, defend, and hold Company and its affiliates, and their respective officers, directors and owners, harmless against any losses, fees, liability, costs, or damages of any kind, including reasonable attorney fees and costs (collectively, “Losses”), Company may sustain as a result of any claim, suit or proceeding made or brought against Company in connection with any information provided to Company by Customer, including, without limitation, Losses arising from (a) assertions made relating to any of Customer’s products or services or any of the products or services of any of Customer’s competitors in any advertising that Company performs on Customer’s behalf; (b) any advertising element that is furnished to Company by Customer that allegedly violates the personal or property rights of any person or entity, including alleged trade name or trademark infringement; (c) any breach by Customer of the Customer Accuracy Obligations, or (d) allegations or claims of misleading, libelous, or unlawful advertising. Customer agrees that, in addition to (i) any signature that Customer may have made in connection with an Invoice or Work Order or (ii) any electronic acceptance of this Agreement by any means, by making payment to Company under Invoices or Work Orders for Products/Services rendered, that Customer accepts and agrees to be bound in full by this Agreement.
Other Terms and Conditions
Company will provide the Products/Services which are described within a Work Order or Invoice. Customer will have seven (7) days, commencing upon the date of receipt of the Products/Services, to inspect and notify Company of any mistakes (“Inspection Period”). If Company is notified of a mistake within the Inspection Period, then Company shall take commercially reasonable efforts to correct the mistake at no additional charge to Customer. If Customer does not notify Company of a mistake within the Inspection Period, the Products/Services shall have been fully accepted “AS IS”. International data (other than Company’s United States business and consumer databases) may be obtained from other proprietary sources and, along with lists obtained from third parties (“Specialty Lists”), are provided strictly “AS IS” and without any Inspection Period.
IN ALL CASES, COMPANY’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT OR THE PROVISION OF PRODUCTS/SERVICES, REGARDLESS OF LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE LOSSES (INCLUDING LOST PROFITS) WHATSOEVER IN CONNECTION WITH THIS AGREEMENT. COMPANY DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS, OR COMPLETENESS OF THE PRODUCTS/SERVICES AND, EXCEPT WITH RESPECT TO CERTAIN MISTAKES IDENTIFIED DURING THE INSPECTION PERIOD AS SET FORTH ABOVE, COMPANY DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer acknowledges that it is Customer’s sole responsibility to determine the applicability of and agrees to only use the Products/Services in compliance with, (i) all applicable federal, state, local and foreign laws, rules and regulations, including, without limitation, the Do-Not-Call Implementation Act, the Driver’s Privacy Protection Act, the CAN-SPAM Act, California Consumer Privacy Act, the California Shine the Light Law, the Junk Fax Protection Act of 2005, the Deceptive Mail Prevention and Enforcement Act, the Telemarketing and Consumer Fraud and Abuse Act, the Telemarketing Sales Rule, and the Telephone Consumer Protection (collectively, “Laws”), (ii) the Direct Marketing Association’s Guidelines for Ethical Business Practice, and (iii) any and all applicable industry guidelines and standards regarding consumer notice and choice about online marketing, including, but not limited to, the guidelines set forth by the Network Advertising Initiative and the Digital Advertising Alliance (items (i), (ii), and (iii) collectively, the “Laws and Guidelines”). Customer should consult with its own legal counsel before initiating any online or offline marketing campaign. Customer acknowledges that Company utilizes multiple sources and collection methods in its data compilation processes. While Company complies in all material respects with Laws and Guidelines in its own data compilation processes, Company makes no representation or warranty that the Products/Services are collected in a manner that satisfies any or all Laws and Guidelines for use in any specific manner or are fit for a particular purpose. Customer further acknowledges and agrees that (i) the Products/Services may not have undergone any specific data processing or verification services, including but not limited to, any state or federal Do-Not-Call lists or wireless number suppression, (ii) Customer is solely responsible for obtaining any necessary data processing to confirm the Products/Services are in compliance with the Laws and Guidelines, and (iii) Customer shall utilize the Products/Services only in a manner permitted by the Laws and Guidelines. Unless otherwise permitted by Company the Company in writing, Customer shall not resell, license, transfer, or in any way permit the use of the Products/Services by or on the behalf of another party. If the Company has given Customer written permission to resell, license, transfer, or in any way permit the use of the Products/Services by another party (“Reseller”), Customer shall require that the Reseller agree to use such Products and Services in the same manner required by Customer hereunder, including, without limitation, in compliance with the Laws and Guidelines.
Subject to payment by Customer of all amounts payable under a Work Order and solely to the extent transferable under the Laws and Guidelines, the Company assigns to Customer all rights, title, and interests, including intellectual property rights, in all deliverables of Product/Services provided to Customer in final form in connection with such Work Order (“Work Product”) and all right, title, and interest in and to such Work Product will be the sole and exclusive property of Customer. Upon assignment, any such Work Product will be deemed “works for hire” to the extent permitted by U.S. copyright law. The Company shall retain all rights, title, and interest in and to Work Product to the extent non-transferable under the Laws and Guidelines. Company reserves the right, but is not obligated, to monitor Customer’s compliance with the terms of this Agreement which may, without limitation, include using a combination of control methods including implantation of decoy information. Upon expiration or termination of this Agreement for any reason, or any license granted herein, Customer shall (a) ensure that all copies of the Products/Services and any related data and information are deleted from its computers and the computers of any service provider or other third party who processed the Products/Services for Customer; (b) cease any and all use of the Products/Services except for any copies electronically archived by Customer in accordance with its automated security and/or disaster recovery procedures; (c) return all copies, whether in print, tape or other media, of all or any part of the Products/Services to Company no later than five (5) days after termination of this Agreement. In the event Customer fails to fully comply with the foregoing obligations, Customer shall pay to Company, as liquidated damages and not a penalty, an amount equal to one-twelfth of the total fees charged under this Agreement for each month of Customer’s noncompliance. Customer shall certify in writing as to its compliance with its obligations within ten (10) days of Company’s request. By Customer’s access to or receipt of any Products/Services, Customer acknowledges and agrees that Company (or its designee) may, during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, audit Customer for the sole purpose of examining and verifying that Customer has complied with the terms of this Agreement. Any such audits will occur during Customer’s normal business hours and Customer shall fully cooperate with Company in connection with any such audits. Company will be solely responsible for its costs and expenses of such audit; provided, however, Customer will pay the reasonable costs and expenses of such audit and any applicable charges if the audit reveals that Customer has not complied with this Agreement.
The Products/Services may include the provision of email addresses (individually, an “Email Address” and, collectively, the “Email Addresses”) to Customer. The Email Addresses are provided and/or made available to Customers solely for Customer’s own business purposes and Customer agrees that it shall not, in its use of the Email Addresses: (i) send or deliver, directly or indirectly, more than: (A) one (1) electronic mail message (as defined in the CAN-SPAM Act of 2003), in the aggregate, to any single Email Address in any seven (7) calendar day period; and (B) three (3) electronic mail messages, in the aggregate, to any single Email Address in any calendar month; (ii) use, or permit any Email Address to be used, in the transmission of any electronic mail message in which the “Sender” (as defined in the CAN-SPAM Act of 2003) is any person or entity other than Customer exclusively; (iii) use Email Addresses for generating “junk mail”, “chain letters,” or unsolicited bulk email or “spamming”; (iv) send any electronic mail message for marketing purposes to an Email Address that is currently in Customer’s own in-house email address suppression list; (v) resell, sublicense, or redistribute the Email Addresses in any manner; provided, however, disclosure of the Email Addresses by Customer to its email service provider(s) solely to enable usage in accordance with this Agreement is permitted and any violation of this Agreement by such service provider(s) will be deemed a violation by Customer; or (vi) use the Email Addresses in a manner that otherwise violates any Laws and Guidelines. In addition to any other rights or remedies available to Company, Customer’s right to use the Email Addresses may be immediately revoked by Company at any time if Customer breaches this Agreement regarding the use of Email Addresses.
In connection with this Agreement, each Party may disclose to the other Party certain information concerning the business of the disclosing Party that is of a commercially sensitive, confidential, or proprietary in nature, including documents marked “confidential” or that should reasonably have been understood by the receiving Party to be confidential due to the nature of the information or the circumstances surrounding disclosure (collectively, “Confidential Information”). The receiving Party agrees to use a degree of care to prevent disclosure that equals or exceeds the care utilized by the receiving Party to protect its own Confidential Information, but in no event will such care be less than reasonable care. The receiving Party further agrees to not use or disclose any Confidential Information of the disclosing Party to third parties other than in conformity with the provisions of this Agreement. The receiving Party shall limit access to the disclosing Party’s Confidential Information to its employees, contractors, and agents on a need-to-know basis who are bound by obligations of nondisclosure and will only use such information in accordance with the terms of this Agreement.
Except to the extent of Company’s gross negligence or willful misconduct, Customer agrees to indemnify, defend, and hold harmless Company and its affiliates, and their respective officers, directors and owners, from and against all Losses arising from or relating to Customer’s breach of this Agreement, violation of Laws and Guidelines, or Customer’s or any Reseller’s use of the Products/Services. This Agreement shall be governed by the laws of the State of Nebraska and in the event of a dispute which is in any way related to the provision or use of the Products/Services, Customer and Company agree that such dispute shall be resolved exclusively in either the state or federal courts located in Douglas County, Nebraska. Company’s rights and remedies are cumulative and the election of any available right or remedy will not be deemed a waiver of or preclude the simultaneous or future exercise of any right or remedy provided herein, at law or in equity. No waiver or amendment of this Agreement or its terms will be valid unless in writing signed by both Parties. This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreements between the Parties regarding such subject matter.