Terms & Conditions
MEDIAGRAPHICS.COM, INC. PRODUCT AGREEMENT ("Agreement")
MEDIAGRAPHICS.COM, INC. ("MEDIAGRAPHICS") HAS ENTERED INTO AN AGREEMENT WITH THIRD PARTY VENDORS ("TPV") FOR THE MARKETING AND DELIVERY OF CERTAIN TPVS DATA PRODUCTS VIA MEDIAGRAPHICS.COM, INC. SOFTWARE APPLICATIONS OR PRODUCTS. THIS IS A LEGALLY BINDING AGREEMENT. READ IT CAREFULLY. USE OF THE DATA PROVIDED BY MEDIAGRAPHICS.COM, INC. CONSTITUTES YOUR ACCEPTANCE OF THIS PRODUCT AGREEMENT. BY INDICATING YOUR ACCEPTANCE BELOW, YOU ACCEPT ALL OF THE TERMS AND CONDITIONS DESCRIBED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PROMPTLY REMOVE THE DATA, TOGETHER WITH ALL COPIES FROM YOUR COMPUTER.YOU MAY BE REFERRED TO IN THIS AGREEMENT AS "CUSTOMER."
MEDIAGRAPHICS.COM, INC. grants to you a limited, non-exclusive license to use the Data (as defined below), provided that you agree to the following:
Term
The term of this Agreement ("Term") shall begin on the Effective Date and shall continue for a period of one (1) year.
Data Products
The terms and conditions set forth in this Agreement shall apply to the following Products when one or more of such Products are provided to Customer.
List Product Agreement
Fees/Payment Terms: Customer agrees to pay MEDIAGRAPHICS.COM, INC. for the Products in accordance with the fees provided by MEDIAGRAPHICS.COM, INC., which are exclusive of taxes unless otherwise specified. MEDIAGRAPHICS.COM, INC. may change the listed prices without prior written notice. The pricing for the Data is based on the Data Customer retrieves or analyzes through Customer's use of the Products. MEDIAGRAPHICS.COM, INC. reserves the right to implement an additional processing charge on Customer's use of the Products with regard to "aggregation queries." For purposes of this Agreement, "aggregation queries" shall include, without limitation, the use of "sum," "count," "average," or "group by" clauses or functions, or any queries that are not based on joining records based on the links created through MEDIAGRAPHICS.COM, INC. or TPV's proprietary linking and integration technology.
Payment for the Products provided hereunder is due either: (i) at the time of order; or (ii) upon receipt of invoice, such payment obligation being contingent upon the type of Products selected. To comply with the payment obligations for the Products, Customer agrees to allow MEDIAGRAPHICS.COM, INC. to perform a credit check and Customer agrees to provide MEDIAGRAPHICS.COM, INC. with all credit or debit card information that MEDIAGRAPHICS.COM, INC. requests in connection therewith. Further, Customer agrees that MEDIAGRAPHICS.COM, INC. is hereby authorized to charge the fees that are owed for the Products to such credit or debit card.
If paying by invoice and in the event of a good faith dispute as to the calculation of an invoice, Customer shall immediately give written notice to MEDIAGRAPHICS.COM, INC. stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by MEDIAGRAPHICS.COM, INC. of such partial payment shall not constitute a waiver of payment in full by Customer of the disputed amount. Any undisputed amounts not paid within thirty (30) days of the date due shall accrue interest at a rate of one percent (1%) per month or the maximum lawful rate, whichever is less. Failure to make timely payments shall constitute a default hereunder and shall entitle MEDIAGRAPHICS.COM, INC., in its sole discretion, to terminate this Agreement, suspend its provision of the Products, and require payment in advance until your account is paid in full.
Title. Customer acknowledges that the Data contained within the Products shall at all times remain the intellectual property of the third party data owners ("Data Owners") who provided the Data and that Customer has no proprietary rights whatsoever in the Data or Products.
Permitted Uses / Restrictions: Customer may use the Data described in this Product Schedule in accordance with the following:
1. The Data provided hereunder shall be rented for either a one-time use, or unlimited use for one (1) year depending on the Customers chosen selection at the time of purchase. The Data is for the Customer's own internal marketing programs and for no other purpose.
2. The Data may be seeded to detect any unauthorized use or duplication thereof, and Customer agrees not to remove seeds from its mailing lists. If MEDIAGRAPHICS.COM, INC. discovers unauthorized use or duplication by Customer, MEDIAGRAPHICS.COM, INC. may invoice Customer for the full multiple use charge and pursue and other remedy at law or equity to which it may be entitled.
3. All marketing efforts, solicitations, ad copy and/or other communications to be used in connection with any list created by or for Customer derived solely from the Data (i) shall be devoid of any references to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient's name and address; (ii) comply with all applicable privacy and data protection laws, rules and regulations; (iii) with respect to Customers who are members of the DMA, comply with all applicable privacy policies published by the DMA; and(iv) be in good taste in accordance with generally recognized standards of high integrity. Customer agrees to maintain its own internal nixie file for the suppression of its customer's records for those customers who wish to opt out of receiving telemarketing and direct mail solicitations.
4. The Data shall be examined by Customer upon the delivery thereof and Customer shall notify MEDIAGRAPHICS.COM, INC. in writing within 30 days of delivery of any questions or problems. No notification shall be accepted after 30 days.
5. Orders may be canceled up to 5 business days after the order is placed. Customer agrees to pay a cancellation fee of $5 per 1000 records with a $25 minimum for its canceled order. Orders may not be canceled after 5 business days from the date of the order. Customer acknowledges that it may not use Data from a canceled order for any purpose, and agrees to pay the multiple use price of the list should MEDIAGRAPHICS.COM, INC. or a Data Owner discover that the data has been used.
6. MEDIAGRAPHICS.COM, INC. reserves the right to review and pre-approve the Customer's intended use of the Data, including, but not limited to, sample mail pieces, telemarketing scripts, prior to MEDIAGRAPHICS.COM, INC. acceptance of an order. Customer is responsible for all materials intended for mailing to names/addresses on the Data provided by MEDIAGRAPHICS.COM, INC., and further agrees to (i) keep copies of mail materials for a period of no less than six (6) months after any mail date and (ii) provide one (1) copy of such materials to MEDIAGRAPHICS.COM, INC. upon request.
7. In the event that Customer utilizes vehicle registration/title information, Customer agrees to promptly provide to MEDIAGRAPHICS.COM, INC., if the Data Owner of such Data requests same of MEDIAGRAPHICS.COM, INC., a list of states included in each mailing, and one copy of all ad copy, telemarketing script or other communications produced by or for Customer using such information. Customer agrees to comply with any future requirements imposed upon the Data Owner by any state and made known to Customer.
8. Customer acknowledges that the Federal Communications Commission ("FCC") has placed restrictions upon marketing activities using facsimile numbers for unsolicited marketing advertisements. Customer agrees that any use of facsimile numbers provided by MEDIAGRAPHICS.COM, INC. as part of the Data will be used in strict accordance with all applicable laws, rules and regulations including, without limitation, the FCC's rules and regulations. Customer shall defend, indemnify and hold harmless MEDIAGRAPHICS.COM, INC. from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of or resulting from Customer's use of the facsimile numbers in violation of any federal, state or local statutes, ordinances, rules or regulations.
Remedies. MEDIAGRAPHICS.COM, INC. sole obligation and Customer's exclusive remedy for any claim of defective Data or Data processing services that is made known to MEDIAGRAPHICS.COM, INC. by written notice from Customer describing any errors in sufficient detail with any necessary backup information or documents shall be to correct the Data or re-perform the services in question without charge or, at Customer's option, to refund the price paid by Customer for such services or Data. Customer acknowledges that some corrections of errors in the Data shall be dependent on the availability of same from the source of the applicable data.
Limitation Of Liability. IN NO EVENT SHALL MEDIAGRAPHICS.COM, INC., TPV, NOR ANY DATA OWNER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY. Any cause of action arising from or in connection with this Agreement shall be asserted within one (1) year of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later.
Indemnification. Customer shall defend, indemnify and hold harmless MEDIAGRAPHICS.COM, INC. and TPV from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of or resulting from Customer's misuse or unauthorized use of the Data.
Special Terms and Conditions:
In addition to the foregoing, the following special terms and conditions are applicable to Customer's use of the Products:
1. If applicable and notwithstanding anything to the contrary in the foregoing, Customer may provide its own file, as enhanced with the Data, to its third party service bureau processor/consultant ("Third Party Processor") who is performing services for Customer in connection with Customer's own marketing programs; provided, that, prior to delivery of the Data to the Third Party Processor, Customer shall have obtained Third Party Processor's written agreement to: i) hold the Data in strict confidence; ii) use the Data only in connection with the services provided to Customer as part of Customer's marketing programs; and iii) not sell, rent or otherwise provide the Data to any third party.
EFFECTIVE DATE: December 19, 2008
