Policies – Email Append Terms
1. Append Services
Within three (3) days of executing the SMA Communications, LLC invoice (hereinafter the “Invoice”), LLC by reference herein, Client shall deliver to SMA Communications, LLC the Customer Database, defined as a compilation of records, each consisting of the first and last name and full physical address of a customer of Client. SMA Communications, LLC shall provide an email address, when available, matching each corresponding record, and shall return the Customer Database to Client in a commercially expeditious manner, or as otherwise specified in the Invoice. SMA Communications, LLC shall not transfer the Customer Database to any third party, nor use the Customer Database, for any purpose other than as provided in these Terms and Conditions or the Invoice.
Client shall pay in full the fees set forth in the Invoice. Such fees shall be calculated by multiplying the indicated rate by the number of email addresses SMA Communications, LLC matches and appends to the Customer Database. If Client fails to pay the full amount of the charges detailed in any Invoice by the earlier of fifteen (15) days after receipt of such Invoice or the time specified on the Invoice, the unpaid amounts of such Invoice shall accrue interest at a rate of 18% per annum or, if less, the maximum permitted by law. Additionally, Client agrees to pay all of SMA Communications, LLC’s cost of collection of such charges, including without limitation SMA Communications, LLC’s reasonable attorneys’ fees.
3. Late Fees
In addition to the terms described in Section 2, above, if Client fails to pay the full amount of the charges detailed in any Invoice within fifteen (15) days of receipt of such Invoice, Client shall pay SMA Communications, LLC a Late Fee in the amount of 5% of the charges detailed in such Invoice.
a. By Client â€“ Client shall indemnify, defend, and hold harmless SMA Communications, LLC against all third party claims, actions, and liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or in connection with: (i) Client’s sale or resale of, promotion of, or misrepresentation about the Client Database; (ii) Client’s breach of any of its obligations, representations, or warranties under these Terms and Conditions (including those set forth in the Invoice); and (iii) any allegation that the Customer Database and/or any communication with the Customer Database violates any third party’s Intellectual Property Rights or privacy rights. SMA Communications, LLC shall promptly notify Client in writing of all such claims and shall accommodate Client’s reasonable requests for cooperation and information.
b. By SMA Communications, LLC â€“ SMA Communications, LLC shall indemnify, defend, and hold harmless Client against all third party claims, actions, and liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or in connection with: (i) SMA Communications, LLC’s misuse of the Client Database in violation of these Terms and Conditions; and (ii) SMA Communications, LLC’s breach of any of its obligations, representations, or warranties under these Terms and Conditions. Client shall promptly notify SMA Communications, LLC in writing of all such claims and shall accommodate SMA Communications, LLC’s reasonable requests for cooperation and information.5. WARRANTIES
SMA COMMUNICATIONS, LLC MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADDRESSES, EXPRESS OR IMPLIED. SMA COMMUNICATIONS, LLC EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL SMA COMMUNICATIONS, LLC BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE LOSS, DAMAGE, OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF SMA COMMUNICATIONS, LLC 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 OR THE INVOICE SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID TO SMA COMMUNICATIONS, LLC UNDER THE INVOICE.
7. Force Majeure
Neither party shall be liable for delays or nonperformance of these Terms and Conditions, or the accompanying Invoice, caused by strike, fire, or accidents, nor shall either party be liable for delay or nonperformance caused by lack of availability of materials, fuel, or utilities or for any other cause beyond its control.
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
9. Relationship of the Parties
The parties are independent contracting entities, and there is no employment, partnership, or agency relationship between them.
10. Entire Agreement
Except as modified or supplemented by a writing executed by both parties, the Terms and Conditions described herein and in the Invoice are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein. In the event of any conflict between these Terms and Conditions and any other document (including, without limitation, the Invoice and any Client invoice, insertion order, or purchase order), the provisions of these Terms and Conditions shall govern.
Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms and Conditions. The law of the State of Pennsylvania shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms and Conditions shall be FT. Lauderdale, FL.
Should any provisions of these Terms and Conditions be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from these Terms and Conditions without affecting the validity or enforceability of any other provision.
The headings of these Terms and Conditions are for convenience only and shall not be used to construe the meaning of this Agreement.