GENERAL TERMS AND CONDITIONS FOR USE OF SEA GRASS MARKETERS’ MATERIALS
In this agreement (the “Agreement”), the words “you” and “your” refer to the party utilizing the Sea Grass Marketers’ Materials and the term “Sea Grass Marketers’ Materials” refers to any materials or services (including, but not limited to data, research and reference materials) provided by Sea Grass Marketers Inc. and/or its affiliated companies.
Upon your acceptance of this Agreement and full and proper payment of all amounts due to Sea Grass Marketers, Sea Grass Marketers grants you a personal, nontransferable and exclusive license to possess and use the Sea Grass Marketers’ Materials solely for your direct marketing, research, reference or customer prospecting purposes in strict accordance with the terms of this Agreement for an unlimited period.
Except to the extent specifically authorized in writing by Sea Grass Marketers, you cannot share or sell the Sea Grass Marketers’ Materials and you are responsible to Sea Grass Marketers for any use of it. You agree and warrant that:
1. You will not provide access to any portion of the Sea Grass Marketers’ Materials to any unauthorized party without the prior written consent of Sea Grass Marketers
2. You shall use your best efforts to prevent the misuse and unauthorized use of the Sea Grass Marketers’ Materials
3. You will not use any Sea Grass Marketers’ Materials for consumer credit purposes, consumer insurance underwriting, employment purposes, tenant screening purposes, or for any other purpose(s) covered by the federal Fair Credit Reporting Act (15 U.S.C. #1681 et seq.) or any similar statute or regulation
4. You shall not name Sea Grass Marketers or its affiliated companies or refer to the use of Sea Grass Marketers’ Materials in any advertisements, promotional or marketing material
5. You shall indemnify and hold harmless Sea Grass Marketers, its affiliated companies and their respective officers, employees and agents (“Indemnified Parties”) against any loss, liability, damage, cost or expense (including, but not limited to, reasonable attorneys’ fees and legal costs) suffered or incurred by any Indemnified Party, arising out of or in any way related to your use of the Sea Grass Marketers’ Materials or the breach of this Agreement.
COMPLIANCE MONITORING AND ENFORCEMENT
It is an express condition of this Agreement that in using the Sea Grass Marketers’ Materials:
1. You and any authorized users shall fully comply with the terms of this Agreement and all applicable federal, state, foreign and local statutes and regulations, including, but not limited to, laws and regulations regarding telemarketing, email, fax marketing, customer solicitation and privacy; and
2. You and any authorized users shall comply with all applicable Canadian Marketing Association (“CMA”) guidelines and Direct Marketing Association (“DMA”) guidelines, if you or your authorized users are CMA or DMA members. If you or your authorized users are not CMA or DMA members, you and your authorized users are encouraged to comply with all applicable CMA and DMA guidelines; and
3. You and any authorized users shall comply with the Canadian Radio-Television & Telecommunications Commission’s regulations regarding the use of Automatic Dialing-Announcing Devices and Conditions for Unsolicited Live Voice and Facsimile Calls for the Purpose of Solicitation as amended from time to time.
Sea Grass Marketers further reserves the right to review materials to be used by you in promotions to ensure that your use of the Sea Grass Marketers’ Materials is both appropriate and in accordance with the permitted uses of the Sea Grass Marketers’ Materials; however, Sea Grass Marketers’ failure to review any such materials shall not constitute Sea Grass Marketers’ acceptance of the materials or in any other way waive any rights Sea Grass Marketers may have or limit any obligations you may have with regard to the use of the Sea Grass Marketers’ Materials. Sea Grass Marketers may also randomly monitor (through seeding and other means) your use of the Sea Grass Marketers’ Materials to ensure that your use is in accordance with the permitted uses of the Sea Grass Marketers’ Materials.
EXCLUSIVE LIMITED WARRANTY AND LIMITATION OF LIABILITY
All Sea Grass Marketers’ Materials are provided on a strictly “as is” basis. Sea Grass Marketers does not assure or warrant the correctness, comprehensiveness or completeness of the Sea Grass Marketers’ Materials and, except as explicitly provided for below, Sea Grass Marketers expressly disclaims any and all warranties of any nature, express, implied or otherwise, including but not limited to any implied warranties of merchantability, non-infringement, and/or fitness for a particular purpose. In lieu of any and all such warranties, Sea Grass Marketers offers to you the following limited warranty:
1. Quality : Sea Grass Marketers will make every effort to validate the accuracy of its lists and will guarantee its data to be 90% deliverable if emailed within 14 days of delivery date. In any dispute regarding the quality of the data delivered, Sea Grass Marketers will establish whether the number of bounces and duplicates fall outside this 90% email deliverability threshold by obtaining a data analysis report from an independent verification service. Such verification service will be chosen by Sea Grass Marketers for its impartiality and its compliance with prevailing industry standards. Sea Grass Marketers guarantees to replace any data that falls outside of this 90% email deliverability threshold.
2. Accuracy : You shall have 7 days after receipt of Sea Grass Marketers’ Materials to inspect these and notify Sea Grass Marketers of any problems or mistakes in relation to the accurate execution of your order. If Sea Grass Marketers has made a material mistake, then Sea Grass Marketers will correct the mistake by replacing the data at no additional charge. However, if errors are due to your faulty or incomplete description and classification of the data you requested, Sea Grass Marketers will not be liable. After this 7 day period Sea Grass Marketers shall have no obligation whatsoever to you.
3. Cancellation and Administration Fees : Given that most, if not all, Sea Grass Marketers’ services are custom designed to order, once payment has been received, no cancellation of the order will be possible. If, for any reason, a cancellation is permitted, an amount for costs and charges will be deducted. This amount will be determined by Sea Grass Marketers.
You expressly agree that Sea Grass Marketers shall not be liable for losses, damages, or injuries of any kind, including but not limited to general, direct, special, incidental, and/or consequential damages caused in whole or in part by the use of the Sea Grass Marketers’ Materials. Whether such damages are asserted in an action brought in contract, in tort or pursuant to some other theory and whether the possibility of such damages was made known or was foreseeable or should this limited warranty fail of its essential purpose, in no event shall Sea Grass Marketers’ entire liability exceed the total amount paid to Sea Grass Marketers under this Agreement.
1. This Agreement shall be governed and construed by the laws of the State of Delaware, United States of America without regard to any conflicts of law principles. Additionally, any action relating to any provision of this Agreement or your use of the Sea Grass Marketers’ Materials shall be brought within the jurisdiction of the courts located within Delaware, United States of America. This Agreement, and the rights and obligations of the parties under this Agreement will not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. The parties further have expressly requested that this Agreement be drawn up in the English language. Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.
2. The terms and conditions set forth in this Agreement constitute the entire terms agreeed between you and Sea Grass Marketers on the subject matter. Any additional or different terms or conditions in any other document, including without limitation any of your purchase orders, shall be of no effect.
3. This policy may be amended from time to time at the discretion of Sea Grass Marketers.
4. Without limiting any other remedies it may have at law or in equity, Sea Grass Marketers reserves the right to terminate this Agreement immediately without further notice if Sea Grass Marketers has reason to believe Customer is not complying with this or any other express condition of use.
USE OF SEA GRASS MARKETERS’ MATERIALS PROVIDED CONSTITUTES YOUR CONSENT TO THIS AGREEMENT. DO NOT USE SEA GRASS MARKETERS’ MATERIALS IF YOU DO NOT WISH TO ABIDE BY THESE TERMS.