1. Copy Delivery & Approval
Copy Delivery and Approval. Advertiser must deliver to SMA Communications, LLC, (“SMA Communications, LLC”) the content of the advertisement Advertiser is contracting SMA Communications, LLC to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to SMA Communications, LLC’s approval. SMA Communications, LLC 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, SMA Communications, LLC shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy. Further, no Pop Up’s or Pop Unders may be launched by Advertiser form any hypertext link or URL, which emanates from any Copy.
2. Details of Broadcast
The email messages broadcast by SMA Communications, LLC 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 SMA Communications, LLC (or affiliate) database.
3. Hardware, Software and Database
SMA Communications, LLC 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 and Conditions shall grant any right, title or interest in or to the SMA Communications, LLC (or affiliate) database, hardware or software.
Advertiser shall pay in full the fees charged by SMA Communications, LLC in the invoice. If Advertiser fails to pay the full amount of the charges detailed in any SMA Communications, LLC invoice 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 SMA Communications, LLC’s cost of collection of such charges, including without limitation SMA Communications, LLC’s reasonable attorneys’ fees. All paid Invoices are non-refundable.
5. 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 SMA Communications, LLC invoice within thirty (30) days of such invoice, Advertiser shall pay SMA Communications, LLC a Late Fee in the amount of 5% of the charges detailed in such SMA Communications, LLC invoice.
Advertiser 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 (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’s intellectual property rights; or (b) Advertiser’s breach of any of its obligations, representations or warranties under these Terms and Conditions. SMA Communications, LLC shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information. SMA Communications, LLC uses a variety of data sources to fulfill email campaigns. We have one of the industry’s largest in-house opt-in email databases as well as several management and affiliate relationships with several premier permission based email marketers. Purchased elists are for private email deployment networks not email ASPs.
SMA COMMUNICATIONS, LLC MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADVERTISEMENTS, EXPRESS OR IMPLIED. THIRD PARTIES PROVIDE THE EMAIL ADVERTISEMENTS ON AN “AS IS” BASIS. SMA COMMUNICATIONS, LLC EXPRESSLY DISCLAIMS ANY 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.
8. 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’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 SMA COMMUNICATIONS, LLC UNDER THE INVOICE.
9. Force Majeure
Neither party shall be liable for delays or nonperformance of these Terms and 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.
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
11. Relationship of the Parties
The parties are independent contracting entities, and there is no partnership or agency relationship between them.
12. Entire Agreement
Except as modified or supplemented by a writing executed by both parties, the Terms and 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.
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 Florida 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.