General Terms of Service

By contracting with Convergent Communications Technologies, LLC D/B/A The BrandMailers (“BrandMailers”) you hereby agree to the following:

1. Can-Spam Compliance Acknowledgment. Pursuant to the CAN-SPAM Act of 2003,Client will ensure that the “From” line at the time of delivery of the interactive email advertisement will be accurate in all particulars.

2. Restricted Transmissions. BrandMailers at its sole discretion, prohibits, and may postpone, cancel or otherwise return to Client advertisements that violate the BrandMailers Restricted Transmission Policy, including advertisements and other mass communications of the following nature:
(a) Selling or offering to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs or paraphernalia; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
(b) Displaying or marketing material that exploits children, or otherwise exploits those under 18 years of age.
(c) Selling or offering products, services or content frequently associated with unsolicited commercial email, also known as SPAM, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, odds making and betting/gambling services.
(d) Providing material that is deemed offensive by BrandMailers, including but not limited to blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
(e) Posting or disclosing any personally identifying information about private individuals.
(f) Selling or promoting any products or services that are unlawful in the location to which the content is to be received.
(g) Introducing viruses, worms or any other harmful code on the Internet.
(h) Promoting, soliciting or participating in pyramid schemes or multi-level marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting “get rich quick”, “build wealth” and “financial independence” offerings.
(i) Engaging in any libelous, defamatory, scandalous, threatening or harassing activity.
(j) Posting any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
(k) Providing content or images, without the express written or purchased consent of the authors, artists, photographers or others.
(l) Any such other advertisements or other content that BrandMailers determines inappropriate.

3. Rights of Re-Use and Grant of License. As further consideration to employing BrandMailers to provide email marketing services, Client hereby authorizes BrandMailers to republish the advertisements mailed on Client’s behalf (following the emailing of said advertisement) solely for BrandMailers’ promotional purposes, and accordingly Client hereby grants BrandMailers a fully paid license in perpetuity to BrandMailers to republish advertisements emailed by BrandMailers solely for BrandMailers’ promotional purposes.

4. Warranties & Limitation of Liability. BrandMailers hereby disclaims all warranties, including implied warranties of merchantability or fitness for a particular purpose; provided, however, that notwithstanding the disclaimer of warranties herein BrandMailers does hereby warrant that in the provision of the services contemplated herein that BrandMailers complies with all laws and regulations promulgated by the United States. Customer hereby warrants that it has reviewed its advertisement in all particulars prior to being deployed, and that such advertisement does not violate in any capacity the laws of the United States, or any individual State wherein it is mailed (other than in regard to BrandMailers’ warranty described above). Except with respect to the indemnification obligations detailed in paragraph 5 below, (i) each Party’s maximum liability under this Agreement shall be limited to the amount of Fees paid to BrandMailers under this Agreement; and (ii) neither Party shall be liable to the other for any indirect, incidental, consequential, or special damages (including but not limited to damages to business reputation, lost business, or lost profits), whether foreseeable and however caused, even if advised of the possibility of such damages.

5. Indemnification. BrandMailers shall protect, indemnify, hold harmless, and defend Customer for claims arising pursuant to a breach by BrandMailers of (i) the terms and conditions herein, or (ii) its warranties. Customer shall protect, indemnify, hold harmless, and defend BrandMailers from claims brought (x) for breaches of the Terms and Conditions herein, (y) pursuant to a breach of its Can-Spam Compliance duties pursuant to paragraph 1 hereof, and (z) for breaches of the warranty above.

6. Intellectual Property. The Customer acknowledges that BrandMailers shall retain all right, title and interest under applicable contractual, trade secret, trademark, copyright, patent and related laws in the BrandMailers services, its software, the BrandMailers email database, artwork created by BrandMailers on the customer’s behalf, and the BrandMailers marketing materials; and accordingly, Customer hereby specifically acknowledges and agrees that it will not use the BrandMailers services for purposes of gaining a competitive advantage against BrandMailers, or in any capacity to further efforts to reverse engineer same. The Customer acknowledges and agrees that the BrandMailers services are unique and the result of millions of dollars of investment and years of development, and that any breach of BrandMailers’ rights in and to the Intellectual Property would be irreparable. BrandMailers hereby acknowledges and agrees that the advertising plans, logos and other marks of the Customer are the property of the Customer, and accordingly BrandMailers shall not use such intellectual property other than in the performance of the services described herein; provided, however, that BrandMailers shall be entitled to re-use the advertisements in accordance with Paragraph 4 above, and BrandMailers shall have the right to list Customer in the BrandMailers customer list.

7. Cancellation Policy. Upon receipt of a signed Insertion Order work begins, and expenses are incurred. Therefore, Insertion Orders cannot be cancelled once submitted with signature. In the event of non payment of an executed insertion order or cancellation of future orders, any promotional pricing, discounts or volume pricing will be rescinded, and Customer will be billed the full retail rates as per the published price list for all services.

8. Miscellaneous.
(a) BrandMailers will not be liable to Customer for any delay or failure in its performance of any of the acts required by this Agreement if and to the extent that such delay or failure arises beyond the reasonable control of BrandMailers, including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, internet downtime, material or component shortages, supplier failures, earthquakes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, flood, epidemics, riots and strikes.
(b) This Agreement will be governed by and construed in accordance with the laws of the State of Florida, which are intended to supersede any choice of laws rules which might require the application of the laws of another jurisdiction. Both parties hereby consent to the jurisdiction of the state courts of Florida with respect to actions brought to enforce or interpret this Agreement and all other disputes between the Parties. Venue for all lawsuits shall be in Palm Beach County, Florida. The prevailing Party in any lawsuits, including appeals, shall be entitled to an award of its reasonable attorney’s fees and costs. All Parties expressly waive trial by jury and agree any dispute shall be decided by a judge.
(c) This Agreement will be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, representatives, successors, and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole, or in part, without the other Party’s prior written consent.
(d) No waiver of any provision of this Agreement shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a continuing waiver in any other instance.
(e) This Agreement (including the exhibits, amendments and addenda hereto which are incorporated herein by this reference) sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters of intent, agreements, covenants, negotiations, arrangements, communications, representations, understandings or warranties, whether oral or written.
(f) The terms and conditions herein may be amended in the sole discretion of BrandMailers, and such amendments will be controlling on Insertion Orders or orders submitted for email services from the date posted forward until future amendment, if any.

Email Append Specific Terms of Service

The following items apply to Email Appends and are in addition to the General Terms of Service:

9. Grant of License. Except as specifically provided herein, BrandMailers hereby grants to Client a non-transferable, non-exclusive, perpetual license to use the Data (as defined below) appended to Client’s provided Housefile (as defined in Section 13 below) for lawful marketing purposes in accordance with the terms of this Agreement, which terms shall survive any termination or expiration of this Agreement. As used herein, “Data” means only those records supplied by BrandMailers that are appended to records of matching consumers in Client’s Housefile. Client shall provide a copy of Housefile for the purpose of appending Data to such file. The license granted hereunder shall automatically terminate upon the breach by Client of any material term or provision of this Agreement.

10. Ownership. Client acknowledges that the Data is owned by BrandMailers or data owners who provided the Data to BrandMailers (collectively the “Data Suppliers”), and that Client has no proprietary rights in the Data other than that granted hereunder. Client shall not identify any Data Supplier as the source of the Data. Client further acknowledges that in the event of non-payment for any portion of append services provided, BrandMailers may, at its sole discretion, choose to utilize any and all supplied Housefile data in any manner deemed necessary to recover losses arising from non-payment.

11. Limitations on Use of the Data.
(a) Compliance. Client agree to use the Data in compliance with applicable Direct Marketing Association (“DMA”) guidelines, and all federal, state and local laws, statutes, rules and regulations.
(b) Solicitations; Ad Copy. Solicitation and ad copy used in connection with the Data shall not disclose the source of the recipient’s name and address, shall be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, and shall be in good taste and of the highest integrity consistent with DMA guidelines, including the DMA Guidelines for Ethical Business Practice, as the same may be revised from time to time (for additional information see: http://www.the-dma.org/guidelines/ethicalguidelines.shtml). Without limiting the foregoing, Client represents and warrants that it shall not use the Data in any advertisement or any marketing campaign that: (i) contains or directly links to a site that contains sexually explicit or obscene materials, or materials that are otherwise deemed offensive; (ii) advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) promotes or engages in illegal activities; (iv) violates intellectual propertyrights of third parties; or (v) contains or promotes deceptive information.
(c) Ad Copy Retention. Client agrees to retain copies of each e-mail solicitation piece (or other marketing materials) used in connection with the Data for at least twelve (12) months after such use, and to provide such material to BrandMailers upon request.
(d) Individual Look-ups. Client agrees that the Data may not be used in any application involving individual look-ups of people or individual reference services (i.e., services used primarily to identify, locate, or verify the identity of an individual).
(e) Eligibility Decisions. Client understands that 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, 15 U.S.C. § 1681 et seq. (“FCRA”). Client further represents and warrants that the Data will not be used as a factor in 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 restricted by the FCRA.
(f) Third Parties; Inspection. Client agrees not to sell, lease, rent or otherwise provide to any other party (i) its own file, as enhanced with the Data, or (ii) any direct marketing list, model, analysis, code or report utilizing or derived from the Data. Client may not use the Data, in whole or in part, in the development of (i) any application that is outside the scope of this Agreement or (ii) any data products or services (as defined below) to be provided to third parties including, without limitation, any list enhancement or data appending service or product. For avoidance of doubt, Client may not use the Data in connection with any third party’s products or services. Upon reasonable notice from BrandMailers you agree to permit inspection of the Data wherever it is stored, processed and/or used. No such inspection shall be considered a release from any obligation under this Agreement.

12. E-mail Services:
(a) Client agrees (i) that the first e-mail communication with customers (“Customers”) utilizing emails derived from the Data will be performed by BrandMailers or by a BrandMailers e-mail delivery service partner; (ii) the text of the first and subsequent e-mail communications with Customers shall contain an opt-out provision, shall identify the sender, and shall clearly express the intent of the e-mail communication; and (iii) after the first e-mail communication is complete, BrandMailers will provide the Data to Client for use subject to the terms and conditions of this Agreement. The first e-mail communication will allow a consumer to immediately electronically opt-out from the matching. In the event that BrandMailers receives an opt-out request from any Customer, BrandMailers shall use reasonable efforts to remove such Customer’s name and related information from any Data provided to Client. If a Customer responds directly to Client with an opt-out request, Client will honor that opt-out request. When Client supply that opt-out information to BrandMailers, we will apply it to the appropriate opt-out file managed by BrandMailers. Client further agrees to honor any Customers’ election to opt-out of receiving e-mail marketing solicitations by applying such suppression files to Client’s files. In the event that Client does not honor such election, BrandMailers may terminate this Agreement immediately without any liability to Client, and Client agrees to defend, indemnify, and hold BrandMailers and the Data Owners harmless for any claims brought against BrandMailers or the Data Owners arising out of Client’s failure to honor such election. This Section shall not apply if: (1) Client elects to receive only e-mail flags, and no e-mail addresses are returned to Client; or (2) Client elects to have BrandMailers conduct an e-mail campaign for Client, and no Data is returned to Client.
(b) Client agrees that it will be solely responsible for the content and operation of Client’s web site(s) and the manner in which Client and Client’s web site(s) interact with or otherwise use any e-mail message sent to any e-mail address included in the Data and any data supplied by or obtained from a recipient of such message. Client shall be responsible for accepting and responding to any communication initiated by a consumer (“Consumer Inquiries”) arising out of Client’s use of the Data. Client shall not use BrandMailers’ or the Data Owner’s name in response to any Consumer Inquiry, unless Client obtains prior consent from Company or the Data Owner.

13. Representations and Warranties. Client represents and warrants that (i) it has a pre-existing relationship with each consumer in any housefile provided to BrandMailers pursuant to this Agreement (a “Housefile”) and that Client shall not use any Data to communicate with any consumer included in the Housefile who has requested not to receive solicitations from Client, including, without limitation, those consumers whose records are identified as Opt-Out Records; (ii) each consumer whose record is contained in any Housefile has purchased a product or service from Client, donated to Client, or signed up for Client’s subscription service within twenty-four (24) months prior to delivery of the Housefile to Company pursuant to this Agreement; and (iii) Client has not engaged a third-party to append e-mail addresses to Client’s Housefile prior to the delivery of the Housefile pursuant to this Agreement. Client further warrants that any e-mail addresses submitted to Company for reverse e-mail append have been obtained by Client through a voluntary submission by Client’s existing customers.

14. Verification of Appended Data Client understands that due to the natural attrition of data, appended information can only be guaranteed accurate for 5 business days. Within that time period all data confirmed to be undeliverable and returned to BrandMailers will be replaced with new data by BrandMailers at no additional cost to the Client. All data deemed undeliverable by the Client must be returned directly to BrandMailers to allow verification of undeliverability. If no valid replacements can be supplied, the Client will receive a company credit equal to the value of the returned records that have been confirmed by BrandMailers multiplied by the per record amount charged to the Client. After 5 business days have passed, Client agrees that the Data will be considered verified to be accurate and all payments due or previously made will be considered final. Client will have thirty (30) days from date of delivery from BrandMailers to return any further email address deemed undeliverable. BrandMailers will at its sole discretion, replace that appended Data within thirty (30) days of receipt of any such emails from Client. Should BrandMailers not be in a position to replace said undeliverable appended Data with a valid replacement, an in-kind credit may be given for other services that BrandMailers offers, but under no circumstance shall a refund or credit of payments be given to client.