Terms and Conditions

COPY APPROVAL

Advertiser must deliver to TAKE 5 MEDIA GROUP LLC, (“the Company”) the content of the advertisement (the “Copy”). Advertiser is contracting the Company to broadcast no less than three (3) days prior to the desired date that the digital-media campaign will begin. All Copy shall be subject to the Company’s approval. The Company reserves the right to reject any Copy that advertises or promotes any product or service involving illegal activity, illegal products, illegal product paraphernalia, sexual paraphernalia, adult films or other media, gambling, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. By reserving this right, the Company shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy.

DETAILS OF BROADCAST

The digital messages broadcast by the Company shall identify the source of the recipient’s data collection and shall contain an opt-out feature that allows the recipient to electronically communicate his desire to be removed from the Company (or affiliate) database.

E-MAIL MARKETING POLICY/CAN-SPAM COMPLIANCE

List Owner represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations (including the CAN-SPAM Act of 2003, as amended from time to time), with respect to e- mail marketing. List Owner acknowledges that any failure to comply with this Agreement may, if mutually agreed upon between Advertiser and List Owner, result in the immediate termination of its List Owner status and may result in the forfeiture of any and all rights to any commissions owed to the List Owner by Advertiser. Only commissions that are directly related to failure to comply with this Agreement may be forfeited.

Without limiting the generality of the foregoing, when performing e-mail marketing of any kind and on behalf of any advertiser, List Owner represents and warrants that List Owner shall:

• deliver commercial e-mail only to those recipients: i) who have been given appropriate notice and choice as to the intended use of their personal data, and who have not requested not to receive future commercial electronic mail messages from that sender at the electronic mail address;
• refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information);
• not use any creative or subject line that is not published by List Owner on an approved content list from Advertiser prior to the sending of the email;
• not use any From name, including but not limited to Client’s name that is not published by List Owner on an approved content list from Advertiser prior to the sending of the email;
• not materially alter any creative supplied by Advertiser through the addition of any text to the body of an email, punctuation to a subject line, or other similar methods;
• refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail;
• include within all commercial e-mail sent:
  1. the valid street address for Client, as published by Client;
  2. a clear and conspicuous opt-out notice linking to the Advertiser hosted unsubscribe page, with unique parameters associated with the List Owner’s latest download of the suppression list;
  3. a clear and conspicuous separate opt-out notice (including valid street address) and functional opt-out mechanism for the Sender;
  4. a clear and conspicuous identification that the e-mail message is an advertisement or solicitation; and
  5. a process to unsubscribe requests on the Sender’s list within eight (8) calendar days.

SUPPRESSION LISTS: With respect to any suppression list generated through the Program, List Owner agrees to:

• use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement;
• regularly use such suppression list to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages from Client;
• not use the suppression list for purposes of e-mail marketing (or provide the suppression list to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression list;
• not use any suppression list for purposes of e-mail appending in any manner whatsoever;
• hold any suppression list in trust and confidence and use same solely for the suppression purposes set forth herein;
• not retain a copy of any suppression list following termination of this Agreement;
• not disclose any suppression list to any employee, consultant, subcontractor, or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by confidentiality provisions substantially similar to the ones contained within this Agreement; and

The send date for all campaign emails must be within eight (8) calendar days of receipt of the Suppression File. In the event that List Owner will send campaign emails later than eight (8) calendar days following receipt of the Suppression File, List Owner must pull an updated Suppression File and List Owner must purge all email addresses listed in the updated Suppression File from their campaign email list prior to such send.

HARDWARE, SOFTWARE, AND DATABASE

The Company shall obtain and maintain the computer hardware and software necessary to perform its obligations under these Terms and Conditions. Such hardware and software shall not be dedicated hardware or software. Nothing in these Terms & Conditions shall grant any right, title or interest in or to the Company (or affiliate) database, hardware or software.

PAYMENT

Advertiser shall pay in full the fees charged by the Company in the invoice. If Advertiser fails to pay the full amount of the charges detailed in any of the Company’s invoices within thirty (30) days of such invoice, the unpaid amounts of such invoice shall accrue interest at a rate of 18% per annum. Additionally, Advertiser agrees to pay all of the Company’s costs of collection of such charges, including without limitation the Company’s reasonable attorneys’ fees.

LATE FEES

In addition to the terms described in Section 4, if Advertiser fails to pay the full amount of the charges detailed in any of the Company’s invoices within thirty (30) days of such invoice, Advertiser shall pay the Company a Late Fee in the amount of 5% of the charges detailed in the Company’s invoices.

INDEMNIFICATION

Advertiser shall indemnify, defend and hold harmless the Company against all third- party claims, actions and liabilities (including all reasonable costs, expenses and attorneys’ fees) arising from or in connection with (a) Advertiser’s product(s), services or the content of the Advertiser’s copy, including without limitation any claim alleging any violation of any third party intellectual property rights; or (b) Advertiser’s breach of any of its obligations, representations or warranties under these Terms & Conditions. The Company shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information.

WARRANTIES

THE COMPANY MAKES NO WARRANTY WHATSOEVER TO THE DIGITAL-MEDIA OR POSTAL LISTS EXPRESS OR IMPLIED. IN THE CASE OF EMAIL THIRD PARTIES PROVIDE THE DIGITAL-MEDIA ADVERTISEMENTS ON AN “AS IS” BASIS. TAKE 5 MEDIA GROUP LLC EXPRESSLY DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF LIST MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

LIMIT OF LIABILITY

IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF TAKE 5 MEDIA GROUP LLC’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THESE TERMS AND CONDITIONS SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES PAID TO THE COMPANY UNDER THE INVOICE.

FORCE MAJEURE

Neither party shall be liable for delays or non-performance of these Terms & Conditions caused by strike, fire or accidents, nor shall either party be liable for delay or nonperformance caused by lack of availability of materials, fuel or utilities or for any other cause beyond its control.

ASSIGNMENT

Neither party may assign its rights or obligations under these Terms & Conditions without the prior written consent of the other party. RELATIONSHIP OF THE PARTIES The parties are independent contracting entities, and there is no partnership or agency relationship between them.

ENTIRE AGREEMENT

Except as modified or supplemented by a writing executed by both parties, the Terms & Conditions described herein and in the attached invoice, incorporated by reference herein, are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein.

DISPUTES

Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms & Conditions. The laws of the State of Delaware shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms & Conditions shall be Palm Beach County, Florida.

SEVERABILITY

Should any provisions of these Terms & Conditions be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from these Terms & Conditions without affecting the validity or enforceability of any other provision.

ADDITIONAL PROVISIONS

The headings of these Terms & Conditions are for convenience only and shall not be used to construe the meaning of this Agreement. The Company is not responsible for the success of its Customer’s advertising campaign. No refunds or credits will be authorized. Any action by either party must be brought within six (6) months. Venue and jurisdiction for any claim arising from or out of this Agreement shall be in Palm Beach County, Florida.

HEADINGS

The headings of these Terms & Conditions are for convenience only and shall not be used to construe the meaning of this Agreement. The Company is not responsible for the success of its Customer’s advertising campaign. No refunds or credits will be authorized. All representations and warranties whether express or implied, including without limitation, any warranties of merchantability or fitness for a particular purpose, are hereby disclaimed by the Company. In no event shall the Company be liable for any direct, indirect, special, exemplary, incidental, consequential or punitive damages, irrespective of whatever such damages were foreseeable or unforeseeable. The limit of the Company liability (whether in contract, tort, negligence, strict liability or by statute or otherwise) in any manner related to this Agreement, for any and all claims, shall not in the aggregate exceed the fees and expenses paid for the services rendered by the Company. In no event shall either party be liable for consequential, incidental or punitive losses, damages or expenses (including lost profits.) Any action by either party must be brought within six (6) months. Venue and jurisdiction for any claim arising from or out of this Agreement shall be in Palm Beach County, Florida.

OTHER COMPANY LOGOS

The logo images on this site are registered trademarks of the respective companies. Take 5 Media Group is not associated with or sponsored by any of the companies listed.

Note: The Company does not permit the usage of exit pop-up window links on offer landing pages without prior consent by both parties. If mutual agreement of exit pop-up windows linked to landing pages, the following line must be signed by the Take 5 Media Group’s account manager.

Take 5 Media Group is a full-service, integrated direct-response company, providing a broad spectrum of marketing services under one roof, all supported by our trigger, compiled, and direct-response data. The company is anchored by a fully-integrated database of over 81MM permission-based emails, 260MM postal records and 196MM telephone numbers including 41MM cell phones and 155MM landlines, enabling you to reach your customers and prospects through multiple channels and answer all your customers’ retention and acquisition needs in today’s highly-competitive market.