Applicability. This document is a Services Agreement (ďAgreementĒ)
between Client and Send4Us, and while in effect governs all transactions
in which Send4Us provides any data, information, analytical, computer or
other services to Client (ďSend4Us ServicesĒ or "Services"). Capitalized
terms used herein are defined in Section 6 or elsewhere below.
1.2. Term. The term of this Agreement shall begin on the Effective Date
above and end upon the termination by either party with thirty days (30)
written notice to the other party or upon being superseded by a
subsequent Services Agreement.
1.3. Supplemental Terms. The terms of this Agreement may be supplemented
by individual amendments ("Amendments") containing additional terms
applicable to certain data and/or Services. All such Amendments must be
expressed in writing and signed by both parties.
1.4. Send4Us Work Orders. Send4Us will accept written work orders from
Client for Send4Us Services (ďClient OrdersĒ). Client and Send4Us shall
mutually agree upon the definition and specification of the Send4Us
Services to be provided in response to individual Client Orders and the
Send4Us Pricing Schedule A (if applicable) attached hereto and hereby
incorporated by reference. Client shall provide Send4Us with such
information as necessary to define each Client Order. Formal acceptance
of Client Orders shall occur when Send4Us commences work pursuant to an
associated Send4Us Work Order.
1.5. Client Purchase Orders. The terms of this Agreement shall be
superior to, and supersede, any preprinted terms contained in any Client
purchase orders or other Client-provided documents. No Client purchase
order or other Client provided-documents shall be binding upon Send4Us
unless signed by an authorized Send4Us employee.
2. Delivery and Order Fulfillment
2.1. Delivery Schedule. Send4Us will use commercially reasonable efforts
to perform Send4Us Services in accordance with the agreed upon
production and delivery dates set forth in the Send4Us Work Order. The
performance dates are contingent upon Send4Usís receipt of any materials
which Client is to provide on the dates and in the form agreed upon and
specified in the Send4Us Work Order.
2.2. Cancellation Policy: Cancellation Policy: Clients can cancel or
change any individual order, in writing, prior to delivery of data or
services. Under no circumstance can client cancel an order after
delivery of data or services has been rendered and will be responsible
for 100% of gross order / invoice value. Clients may be subject to a 25%
cancellation charge if an individual order is cancelled after "testing"
3. List Processing and Database Services
3.1. Performance of Services. In the performance of Services for Client
hereunder, Send4Us shall perform Services in a prompt and timely manner
and use commercially reasonable efforts to complete such Services in
accordance with the agreed upon schedule. Send4Us shall devote such
time, attention and care to the performance of such services as Send4Us
devotes to the normal and regular performance of Services for Send4Us
Clients generally. Send4Us shall have the right to employ such methods
and procedures in the performance of Services as Send4Us shall deem
appropriate and have the right to refuse to perform services for a
Client where the performance of Services by Send4Us would be unlawful or
adversely reflect on Send4Usís reputation or integrity.
3.2. Computer Media Specifications; Regeneration of Data. In connection
with any Services requiring Client to supply Client Data, all such data
shall be delivered to Send4Us at Client's expense, and shall be
submitted in a format and upon such computer media as mutually agreed
upon by the parties. Client represents and warrants that Client shall
have obtained proper rights, ownership, agreement, or approval for the
use and re-use of such data for processing prior to the delivery of such
data to Send4Us. Client shall maintain one (1) usable copy of all Client
Data as supplied to Send4Us in order to enable Send4Us to regenerate
such data. In the event of loss, damage, or destruction to any Client
Data while in Send4Us possession or control, Send4Usís liability shall
be limited to the cost of regeneration of such data utilizing the Client
copy of such data in an amount not-to-exceed One Hundred Dollars
3.3. Delivery, Storage, and Return of Client-Provided Files. Send4Us
shall deliver to Client or to such other party as Client may direct, all
final output data resulting from Services performed hereunder ("output
filesĒ). Following completion of a Client Order, Send4Us may erase or
destroy the associated output files, except for those files that Client
has directed Send4Us in writing to retain. If Client directs Send4Us to
retain output files longer than six (6) months, Client shall pay a
monthly storage fee in accordance with Send4Usís then standard prices.
3.4. Non-conforming Services; Review of Interim Results. Send4Us shall
perform the Services hereunder in accordance with Client Orders and at
Send4Usís expense, correct any non-conforming services where the
nonconformity results from errors on the part of Send4Us. If requested
by Send4Us, Client shall review interim results provided by Send4Us and
inform Send4Us in writing of any nonconformance. Where Send4Us is not
informed of nonconformance, Send4Us shall be entitled to assume the
correctness of the interim results for the purpose of completing the
Services under this Services Agreement, and shall not be liable for the
cost of correcting any nonconformance reasonably discoverable by Client
as part of the interim review. Send4Us shall use all reasonable
resources to reschedule the non-conforming Services so as to ensure the
completion on or before the scheduled completion date for the Services.
Client's failure to give Send4Us written notice of non-conforming
Services within ten days (10) of Send4Usís performance of the Services
shall constitute final acceptance and approval of the Services by
3.5. Postal Regulations. Send4Us shall perform all Processing Services
hereunder in accordance with postal regulations applicable to
preparation, makeup, and verification of presorted and bulk mailings.
Client hereby acknowledges that additional production steps subsequently
performed by Client or third parties may result in the loss of names
and/or result in the rejection of the project for mailing, disallowance
of discounts or the assessment of postal penalties resulting from
additional production steps performed by Client or such third party.
4. Grant of License.
4.1. Send4Us hereby grants licenses to Client as follows:
4.1.1. With respect to the address information, returned to Client after
undergoing Send4Usís address hygiene processing, Client is granted a
non-exclusive, irrevocable, perpetual, royalty-free license to use such
information for its own business purposes; provided, however Client
shall not use such information to provide address hygiene services to
any third parties.
4.1.2. With respect to any other Send4Us Data provided to Client (e.g.
prospect Lists, email lists, demographic data elements, herein the
ďLimited License DataĒ) Client is granted a non-exclusive, limited
license to use such information in connection with its marketing
activities during the term of this Agreement but in no event for a
period of less than 12 months.
4.1.3. Upon the termination or expiration of this Agreement, (i) Client
shall discontinue using the Limited Licensed Data and destroy or return
to Send4Us the Limited License Data in its possession and provide
Send4Us with a certification that all Limited License Data has either
been returned to Send4Us or destroyed, provided, however, that Client
shall have no such obligation to discontinue its use of, destroy, or
return any Client Data (including address information after hygiene
processing); and (ii) Client shall pay to Send4Us, in accordance with
the terms hereof, all fees and charges, if any at that time, which are
accrued up to the effective date of the termination or expiration and
not have not yet paid hereunder.
4.2. Client agrees that it will use Send4Us Data only for its own
marketing purposes and shall not resell, transfer or provide the Send4Us
Data in any form to any non-affiliated third party other than a
subcontractor performing services for Client provided such subcontractor
is prohibited from using or disclosing the Send4Us Data contrary to the
terms of this Agreement.
5. Payments to Send4Us
5.1. Payment Terms. Client will pay Send4Us for the Services in the
amounts agreed upon and set forth in the applicable Send4Us Work Order
and/or the Send4Us Pricing Schedule A (if applicable). Send4Us's
invoices will be deemed to be correct and acceptable to Client unless
Client advises Send4Us of disputed items within ten (10) days of their
receipt. If Client fails to pay any invoice (or any undisputed portion
of an invoice) in accordance with the foregoing terms, Send4Us reserves
the right to suspend performance of any and all Services until such
outstanding amounts have been received, and Client shall also pay
Send4Usís costs related to collection and interest on the unpaid amount
at the lesser of one and one-half percent (1.5%) per month or the
maximum amount allowed by law. Each broadcast will be billed
5.2. Additional Assurances. If at any time during the term of this
Agreement, it reasonably appears to Send4Us that Client may be unable or
unwilling to fully perform its obligations under this Agreement
(including, but not limited to, payment of amounts due) such that
Send4Us has reasonable grounds for insecurity, Send4Us may, by written
notice to Client, set forth such grounds and require from Client
additional assurances of performance. If Client fails to provide such
assurances within the time specified by Send4Us, Send4Us may treat such
failure as a material breach of this Agreement and exercise all
appropriate remedies including termination.
5.3. Shipping Costs; Taxes. The prices and rates for the Services do not
include shipping costs or applicable federal, state or local taxes, and
Client will pay or reimburse Send4Us for such shipping costs and taxes.
Send4Us will show the amount of all such charges separately on its
invoices to Client.
6.1. "Authorized End UserĒ means the individual or business specifically
identified by Client, accepted by Send4Us, and reflected in Send4Us's
Work Order. If no Authorized End User is identified by Client, Client is
deemed to be the Authorized End User of the Send4Us Data.
6.2. A "Broker" is understood to mean an individual or business who is
acting on behalf of a single client with respect to each order for data
or services placed by such Broker and who does not distribute such data
or services, or information products or services derived from such data,
to multiple recipients.
6.3. "Client Data" means data that Client provides to Send4Us for file
enhancement or other processing services.
6.4. "Data Enhancement" shall mean the matching of a Client owned,
licensed, or rented file to Send4Us Data for the purposes of overlaying
specified Send4Us owned geographic, email address, demographic, or other
criteria to the Client-supplied records.
6.5. "Database Services" shall mean Send4Us's performance of various
Services relating to Client's database including but not limited to the
construction, updating, and maintenance of Client's database at
6.6. "End Users" shall mean individuals or businesses (in the form of
any legal entity) whose use of the Send4Us Services is for their own
business purposes and not for the purpose of rendering or reselling
information services to third parties.
6.7. "Send4Us Data" means any data, which Send4Us provides to Client or
Client's designee in performing Send4Us Services except for Client Data.
6.8. A "List" shall mean a selection of names and addresses meeting
specified geographic, demographic, or other criteria from Send4Us's
compiled prospect databases.
6.9. "List Rentals" shall mean a selection of names and address meeting
specified geographic, demographic, or other criteria from Send4Us's
compiled prospect databases for one-time use.
6.10. "Processing Services" shall mean Send4Us's performance of various
Services including but not limited to the manipulation, enhancement, or
suppression of client owned, licensed, or rented data in connection with
Client's own marketing programs.
6.11. "Prospect File Overlay" shall mean Send4Us's Data Enhancement of a
Client owned, licensed, or rented prospect file for the purpose of
selecting or omitting records.
6.12. A "Reseller" shall mean any individual or business, which obtains
data from one or more third party, sources and subsequently provides
such data, or information products and services derived from such data,
to one or more third parties. A Broker shall not be considered a
Reseller, so long as the Broker is acting on behalf of a single
Authorized End User and does not distribute data, or information
products or services derived from such data, to multiple recipients.
6.13. "Special Use Riders" shall mean addenda, which describe special
circumstances, procedures, or applications involving the provision of
6.14. A "Third Party Processor" shall mean any individual or business
which will receive Send4Us Data on behalf of an Authorized End User in
order to perform Processing Services for the Authorized End User
including, without limitation, letter shop, advertising and mailing
6.15. An "Update" shall mean Send4Usís re-provision of certain Send4Us
Data or Services to reflect modifications made by Send4Us or its
7. Do-Not-Call Compliance
7.1. General. This Section 7 shall apply only if (1) as part of the
Send4Us Data or Send4Us Services, Send4Us provides Client with telephone
numbers to be used by Client or a third party acting on Clientís behalf
for telemarketing solicitations or (2) Send4Us provides do-not-call
suppression services to Client. Each party agrees to comply with all
applicable telemarketing laws and regulations, both international state
and federal, including but not limited to the federal Telemarketing
Sales Rule, 16 CFR Sect. 310 and to use the do-not-call information
obtained from the Registry only for purposes of complying with the Rule.
7.2. Send4Us Obligations. To support the activities described in
Paragraph 7.1, Send4Us agrees that it will use commercially reasonable
efforts to maintain a do-not-call suppression file, the currency of
which meets or exceeds federal requirements; provided, however, Send4Us
does not warrant or guaranty that all do-not-call names have been
identified in a Client provided List or suppressed from a prospect List
provided by Send4Us.
7.3. Client Obligations: Represents that it has, or agrees that it will,
register as a ďsellerĒ with the FTC, obtain a Subscriber Account Number
and pay the requisite fees for the area codes for which Client has
registered and to further provide the Subscriber Account Number
information to Send4Us.
8. Data Restrictions
8.1. Client Data. Send4Us agrees that it will use Client Data only for
the purpose of performing the Send4Us Services ordered by Client and
will not disclose Client Data to any third party except as directed by
Client or as necessary to perform the Send4Us Services. Unless otherwise
agreed and reflected in the Send4Us Work Order, Send4Us will return or
destroy all Client Data upon completion of the Send4Us Services.
8.2. Internet Data Usage. Send4Us Data provided under this Agreement to
Client shall not be utilized by Client in any Client Internet
application or Internet Website without prior express written consent of
8.3. Data Overlay/File Enhancement. Send4Us Data supplied for overlay or
Enhancement shall be used solely for the following purposes: i) direct
mail or email solicitations, ii) conducting telephone solicitations,
and/or iii) conducting telephone surveys. This shall not, however,
prevent Client's use of Send4Us Data for internal analysis or for
previous mail suppression. Client certifies that the Client file to
which Send4Us Data is being appended contains no names of persons under
the age of eighteen (18). If such Client file contains such names,
Send4Us shall not be responsible for, and shall have no liability in
connection with, Client's use of such names. Certain Send4Us Data may be
withdrawn from Client use at Send4Usís sole discretion, and Client
agrees to immediately cease any use of such withdrawn Send4Us Data upon
notice from Send4Us.
8.4. One Time Use, List Rentals. Unless otherwise agreed, and reflected
in the Send4Us Work Order, Client is permitted to use a List provided by
Send4Us only once and only for one of the following purposes: i) direct
mail solicitations, ii) conducting telephone solicitations, or iii)
conducting telephone surveys, iv) email campaigns. In no event will
Client use the Send4Us Data in solicitations or surveys conducted more
than one (1) year after delivery of the Data. This shall not, however,
prevent Client's use of a list provided by Send4Us, or the Send4Us Data,
only for Client's internal analysis or for previous mail suppression.
Send4Us may include seed names for the purpose of detecting unauthorized
8.5. Resale Prohibition. Client acknowledges that the Send4Us Data
provided to Client is proprietary and confidential to Send4Us and Client
represents and warrants that it is not a Reseller. Client agrees that it
will not copy or otherwise reproduce any Send4Us Data except as
necessary for back up or security purposes. Client further agrees that
it will not resell, or otherwise provide or disclose to any third party,
any Send4Us Data, in whole or in part, for any purpose whatsoever. Under
no circumstances will Client attempt, directly or indirectly, to
discover or reverse engineer any confidential and proprietary criteria
developed or used by Send4Us in performing Send4Us Services.
8.6. Manner of Use. Client agrees that it will use the Send4Us Data
provided under this Agreement for marketing purposes only in accordance
with all country-specific, federal, state and local laws, Can Spam Act
of 2003 applicable Direct Marketing Association Guidelines (www.the-dma.org),
and in a manner which gives due consideration to matters concerning
privacy and confidentiality. Clients will not in any direct mail
solicitation, telephone solicitation, or survey utilizing Send4Us Data
refer to any selection criteria or any presumed knowledge about the
recipient. The Send4Us Data may not be merged or incorporated with any
other file without the express written consent of Send4Us. None of the
Send4Us Data may be used to enhance a file or list owned by any third
party, to develop any list, enhancement or product or to prepare,
publish, clean or maintain any directory.
8.7. Opt-Outs. Client agrees to employ processes and business practices,
consistent with industry standards, which will enable Client to abide by
the opt-out requests of consumers.
8.8. Copy Review. Client agrees that under any of the circumstances
described below, Client will provide Send4Us with a copy of any direct
mail solicitation, telephone script for review, email solicitation, and
approval prior to conducting any associated solicitation or survey
utilizing Send4Us Data. Such review shall be for the purpose of ensuring
consistency with the restrictions set forth in this Services Agreement.
With respect to Prospect File Overlay/Enhancements and List Rentals,
Client will provide a copy: (i) automatically, without request, if the
solicitation involves or utilizes children, smoker, health, motor
vehicle, or such other information as may be identified by Send4Us and
(ii) upon request by Send4Us for solicitations or surveys involving
other Send4Us Data. With respect to Overlay/Enhancement Services to a
Client file, Client shall provide a copy upon request by Send4Us. With
no liability to Client, Send4Us may delay shipment of any Client order
in the event Client fails to provide such items as required under this
Agreement and may cancel or terminate any Client order if, in Send4Usís
sole judgment, the subject mail pieces or scripts fail to meet the
requirements of this Services Agreement, in particular, Paragraph 8.6.
8.9. Audit. Client will maintain current, accurate, and complete books
and records relating to its use of Send4Us Data for a period of at least
twelve (12) months after each marketing communication. Client shall
maintain a file of the latest twelve (12) months of communications, to
include sample mail pieces, telemarketing scripts, ad copy, or other
communications that Client has used, and a list of each state to which
the marketing communication is made. Send4Us or any representative it
designates, will have the right to examine and copy or make extracts
from all such books and records and any source documents used in
preparation thereof, at any time during normal business hours, provided
Send4Us gives Client written notice at least three (3) business days
prior to any such examination.
8.10. Security. Client shall provide for physical security of Send4Us
Data with the same degree of care (provided that such is at least a
reasonable degree of care) that Client uses to protect its own most
sensitive data. Client shall not grant access to the Send4Us Data to
individuals incarcerated in prisons or correctional institutions.
8.11. FCRA. Client understands that Send4Us Data has not been collected
for credit purposes and is not intended to be indicative of any
consumer's credit worthiness, credit standing, credit capacity, or other
characteristics listed in Section 603(d) of the Fair Credit Reporting
Act ("FCRA"), 15 USC Section 1681a. Client represents and warrants that
it shall not use any Send4Us Data as a factoring establishing any
consumer's eligibility for (i) credit or insurance used primarily for
personal, family or household purposes, (ii) employment purposes, or
(iii) other purposes authorized under Section 604 of the FCRA, 15 USC
Section 1681 b or any similar statute.
8.12. Additional Restrictions. Client will also comply with any
additional restrictions placed upon the use or disclosure of Send4Us
Data (i) as agreed upon and set forth in the applicable Send4Us Work
Order, Amendment or Supplemental Terms to this Agreement (ii) and, upon
written notification from Send4Us, such additional restrictions that
have been placed upon Send4Us by third parties including government
agencies or Send4Usís data sources. In the latter event Client may
request, and Send4Us will not unreasonably refuse, that an equitable
adjustment be made in the price paid for the Send4Us Data affected by
such restrictions to the extent such restrictions reasonably lessen the
value of such data to Client.
8.13. Retained Ownership. Client acknowledges that Send4Us has expended
substantial time, effort and funds to gather and compile its various
databases and provide the Send4Us Services which are the subject of this
Agreement and further acknowledges that the data provided by Send4Us
hereunder is, and shall remain, the proprietary property of Send4Us.
Nothing contained in this Agreement shall be interpreted to convey to
Client or to any other party any right, title or interest in the Send4Us
Data or Send4Us Services, including any patent, copyright, or other
proprietary right. All data provided by Client to Send4Us is, and shall
remain, the property of Client. Neither party will use, or permit their
respective employees, agents and subcontractors to use, the trademarks,
service marks, logos, names or any other proprietary designations of the
other party, or the other party's affiliates, whether registered or
unregistered, without such other party's prior written consent.
9. Warranties, Remedies and Indemnification
9.1. Mutual Representations and Warranties. Each party hereby represents
and warrants to the other party that (a) it has the full right, power
and authority to enter into and perform this Agreement, and (b) this
Agreement has been duly authorized, executed and delivered and
constitutes the valid and binding obligation of each party enforceable
in accordance with its terms.
9.2. Warranties and Limitations by Send4Us.
9.2.1. Warranties. Send4Us warrants to Client that it has the right to
provide Send4Us Data to Client for the uses authorized by this
Agreement. Send4Us further warrants that it will make reasonable
commercial efforts to ensure that the Send4Us Data delivered to Client
hereunder and information contained therein will be as complete,
accurate, and current as it can be in view of Send4Usís customary method
of compilation or acquisition of such data and the nature and accuracy
of Send4Usís sources for such data. HOWEVER, Send4Us DOES NOT GUARANTEE
THE ACCURACY OR RELIABILITY OF SUCH DATA OR THE RESULT OR CONSEQUENCES
FROM THE USE OF SUCH DATA. THE FOREGOING WARRANTIES ARE THE ONLY
WARRANTIES Send4Us HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES. SUCH
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE
9.3. Limitation of Remedies Ė Non-Conforming Data or Services. Send4Usís
sole liability hereunder for non-conforming Data or Services, as Send4Us
may elect, regardless of the form of action, will be either (i)
Send4Usís re-performing the non-conforming Services (or re-providing the
Send4Us Data) or (ii) the adjusting any fees Client has paid for such
non-conforming Services or Send4Us Data according to the value, if any,
of such Services to Client.
9.4. Disclaimer of Damages. EXCEPT AS OTHERWISE PROVIDED IN THIS
PARAGRAPH 9.4, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO
ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS
REPUTATION, LOST BUSINESS, COSTS OF COVER, POSTAL CHARGES OR LOST
PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF A PARTY
IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BE LIABLE TO THE OTHER
PARTY FOR DIRECT DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES, FOR BREACHING
THE RESTRICTIONS IN THIS AGREEMENT UPON THE USE OR DISCLOSURE OF Send4Us
DATA, CLIENT DATA OR BREACHING SECTION 7 (Do-Not-Call Compliance) OF
9.5. Indemnification. Each party specifically acknowledges that the
terms, conditions and License Fees set forth in this Agreement are
predicated, in part, upon the allocation of risks set forth in this
9.5.1. By Client. Client agrees to indemnify and hold Send4Us harmless
from and against any and all losses, claims, damages and liabilities
which Send4Us may suffer or incur based upon any third party claim,
charge or suit instituted against Send4Us arising out of or resulting
from: (i) Clientís or its customersí violation of laws in using the
Send4Us Data; and (ii) any unauthorized use of the Send4Us Data by
Client or any third party having access to same by, through or under
Client; provided, however, this indemnification obligation shall not
extend to third party claims arising out of a breach of this Agreement
by Send4Us or a third party claim as described in Paragraph 9.5.2 below.
9.5.2. Title Indemnity. Send4Us shall defend, protect, indemnify and
hold Client harmless against all costs, expenses and damages
attributable to any third party claim, charge or suit instituted against
Send4Us arising out of or resulting from: (i) Send4Usís violation of
laws in providing the Send4Us Data to Client; (ii) allegations that
providing the Licensed Data to Client and Clientís use of the Licensed
Data in accordance with the terms of this Agreement infringes on any
United States patent, copyright, or other intellectual property or
privacy right of any third party, provided that Send4Us is given prompt
notice and full control over the defense of any such claim and receives
Clientís full cooperation (at Send4Usís sole expense) in the defense
thereof. Notwithstanding the foregoing, Send4Us will have no obligation
for infringement indemnity to the extent any claim of infringement is
based upon (i) Clientís use of other products not furnished directly by
Send4Us; (ii) Clientís use of the Licensed Data in a manner not
contemplated herein; or (iii) any change or modifications made by or on
behalf of Client to Licensed Data by a party other than Send4Us
(collectively, ďExcluded ClaimsĒ). In connection with any such claim of
infringement other than any Excluded Claims, Send4Us may, at its option,
(a) secure a right or license to allow Client to continue using the
Licensed Data; (b) modify the Licensed Data or the use thereof to avoid
the claim; (c) provide other non-infringing data or services that are
the equivalent of the Licensed Data; or (d) if none of these
alternatives is available on commercially reasonable terms, terminate
this Agreement. THE FOREGOING STATES Send4Usís ENTIRE LIABILITY TO
CLIENT FOR ANY CLAIM OF INFRINGEMENT OF ANY PROPRIETARY RIGHTS ASSERTED
BY A THIRD PARTY.
9.5.3. Notice. Each party agrees to notify the other party in writing of
any such claim, action, proceeding or demand as soon as reasonably
practicable upon receipt of knowledge of same and afford the
indemnifying party the opportunity to defend or participate in the
defense of such claim, action proceeding or demand, and further, each
party agrees that no settlement or payment of any claim, action,
proceeding or demand shall be binding upon the indemnifying party,
unless prior approval and consent is obtained from the indemnifying
party, which consent shall not be unreasonably withheld. In addition
thereto, the indemnified party shall cooperate with the indemnifying
party in every reasonable manner (at the indemnifying partyís sole
expense) to facilitate the defense of any claim, charge, or suit brought
10.1. Amendments. This Agreement may be amended at any time but only by
a written agreement which refers expressly to this Agreement and which
is signed by both parties.
10.2. Immediate Termination. This Agreement may be terminated by Send4Us
immediately upon written notice to Client if Client fails to make any
payment hereunder when due or, if in Send4Us 's reasonable judgment, any
Send4Us Data provided to Client is being used or disclosed contrary to
this Services Agreement. Termination of this Agreement shall not relieve
Client of its obligation to pay for any Services performed or provided
by Send4Us under this Agreement and any and all restrictions upon the
use or disclosure of Send4Us Data shall survive any termination of this
Agreement for any reason.
10.3. Waivers. Either party may waive compliance by the other with any
covenants or conditions contained in this Services Agreement, but only
by written instrument signed by the party waiving such compliance. No
such waiver, however, shall be deemed to waive any other circumstance or
any other covenant or condition not expressly named in the written
10.4. Promotional Release. Client must submit for Send4Us's prior
approval all advertisements, promotional or marketing material which
names Send4Us or refers to the use of Send4Us Data or Send4Us
facilities. Send4Us approval must be obtained prior to release or
publication of such advertisements, promotional or marketing materials.
10.5. Binding Arbitration. If the parties to this Agreement are unable
to resolve any dispute arising out of or relating to this Agreement,
orders placed by Client under this Services Agreement, or the parties'
respective rights or performance obligations hereunder, then the parties
will resolve such dispute in a binding arbitration under the auspices of
the American Arbitration Association in City of West Palm Beach, State
of Florida. In addition to all other rights and remedies a party may
have, the prevailing party in any arbitration or legal action shall be
entitled to an award of its reasonable attorneys' fees and costs. This
binding arbitration commitment shall not, however, prevent either party
from seeking equitable or injunctive relief in a court of appropriate
10.6. Confidentiality. Send4Us hereby identifies as proprietary and
confidential itís various databases and the Send4Us Data contained
within such databases as well as the methods utilized by Send4Us in
gathering, compiling and maintaining such data or in providing the
Services. Client hereby identifies as proprietary and confidential any
Client Data provided to Send4Us by Client for file enhancement or other
Send4Us Services. Each party will take reasonable precautions to assure
that all confidential information disclosed to it by the other party is
held in strict confidence and disclosed only to those of their
respective employees whose duties reasonably require access to such
information. Each party will take suitable precautions to prevent loss,
compromise, or misuse of any media containing consumer information while
in the possession of either party and while in transport between the
10.7. Relationship. The parties will perform all services hereunder as
independent contractors. Nothing contained in this Agreement shall be
deemed to create any association, partnership, joint venture, or
relationship of principal and agent or master and servant between the
parties. Neither this Agreement nor any provisions set forth herein is
intended to, or shall, create any rights in or confer any benefits upon
any person other than the parties hereto. This Agreement is binding upon
and shall inure to the successors of each of the parties hereto.
However, Client shall not assign this Agreement without the express,
written consent of Send4Us, which consent shall not be unreasonably
10.8. Excusable Delays. Neither party shall be liable for any delay or
failure in its performance under this Agreement if and to the extent
which such delay or failure is caused by events beyond the reasonable
control of the party including, without limitation, acts of God or
public enemies, labor disputes, equipment malfunctions, material or
component shortages, supplier failures, embargoes, rationing, acts of
local, state or national governments or public agencies, utility or
communication failures or delays, fire, earthquakes, flood, epidemics,
riots and strikes. If a party becomes aware that such an event is likely
to delay or prevent punctual performance of its own obligations, the
party will promptly notify the other party and use its best effort to
avoid or remove such causes of nonperformance and to complete delayed
job whenever such causes are removed.
10.9. Governing Law. This Agreement is governed by and construed in
accordance with the internal substantive laws of the State of Florida.
Except for the arbitration of any dispute pursuant to paragraph 10.5,
both parties hereby consent to the jurisdiction of the courts, whether
federal, state, or local, with respect to actions that arise out of or
relate to this Services Agreement.
10.10. Notices. All notices, requests and other communications hereunder
shall be in writing and shall be acknowledged at the time of receipt if
delivered by hand or communicated by electronic transmission, or, if
mailed, three (3) days after mailing registered or certified mail,
return receipt requested, with postage prepaid. Notices to Send4Us, Inc.
shall be addressed to:
Send4Us, Inc., 20423 SR7, Suite F6, Mission Bay Plaza, Boca Raton, FL
Attn: Compliance Officer
10.11. Complete Agreement. This Agreement (as supplemented by Send4Us
Work Orders and/or any referenced attachments) sets forth the entire
understanding of Client and Send4Us with respect to the subject matter
hereof and supersedes all prior letters of intent, agreements,
covenants, arrangements, communications, representations, or warranties,
whether oral or written, by any officer, employee, or representative of
either party relating thereto. No terms, provisions, or conditions of
any Client purchase order, acknowledgment, or other business form that
Client may use will serve to alter or have any affect on the terms of
this Services Agreement. No amendment or modification hereof shall be
binding unless in writing and dually executed by both parties.
IN WITNESS WHEREOF, Client and Send4Us execute this Agreement to be
effective on the Effective Date above.