Acceptance of Terms
AGREEMENT BETWEEN USER AND DirectMail.com, this Web site, http://www.directmail.com (referred to as the "Site") is offered to you by DirectMail.com, (referred to as the "Company") on the condition that you accept the terms, conditions, and notices contained on this page and on other pages of this Site. You are granted permission to access and use this Site and its Content for the sole purpose of preparing, evaluating, and ordering products or services solely through the Company (referred to herein as "Products"). No other download, retention, use, publication, or distribution of any portion of the Content is authorized or permitted. Obtaining Products from the Company does not entitle you to use any portion of Content apart from the finished Products as they are supplied by the Company.
Membership Obligations and Conduct
Member Account, Password and Security
You agree that you are responsible for protecting your password and controlling access to your registered account. You agree that you will be responsible for all orders placed or other actions that are taken through your registered account.
Content Submitted or Made Available for Inclusion on the Service
You are solely responsible for your use of Content in combination with any other images, graphics, text or other materials you incorporate into your Products. You agree that you will not include any text, image, design, trademark, service mark, or any copyrighted work of any third party in your Products unless you have obtained the appropriate authorizations from the owners. You warrant that your Products do not infringe upon any rights of any third party, including copyright, trademark, right of publicity or privacy, and will not libel or defame any third party, and that you have all required rights or permissions necessary to incorporate third-party material into your Products. By placing an order on this Site, you warrant that you have all necessary permission, right and authority to place the order and you authorize the Company to produce the Products on your behalf.
By using the services of the Company, you warrant that the subject matter to be printed is not copyrighted by a third party. You also recognize that because subject matter does not have to bear a copyright notice in order to be protected by copyright law, absence of such notice does not necessarily assure a right to reproduce. You further warrant that no copyright notice has been removed from any material used in preparing the subject matter for reproduction.
To support these warranties, you agree to indemnify and hold the Company harmless for all liability, damages, and attorney fees that may be incurred in any legal action connected with copyright infringement involving the work being printed.
Terms of Sale
Full payment, including shipping and handling fees if applicable, is required to complete an order. No work will proceed until full payment is received. No refunds will be given for orders that have been received by prepress department.
All sales are final, unless otherwise noted. After an order has been sent to prepress department, Customer is responsible for paying the entire amount of that order, unless otherwise noted. In some cases, a refund may be extended to Customer if no work has been completed by the Company for that order. In such cases, Customer will be charged a $49 cancellation fee, which would be in addition to any fees charged for proofs if applicable. In some cases, an order may be voided the same day the order was placed as long as no work has been completed by the Company for that order.
All complaints must be registered within 24 hours of receipt of job. Should the job contain manufacturing errors and/or defects, the Company would rerun the job at no charge. The Company maintains the right to judge what a manufacturing error and defect is.
All Maryland orders are subject to sales tax. If Customer is tax exempt, an exemption certificate must be sent or faxed to the Company with the first job.
Customer will indemnify and hold harmless the Company from any and all losses, cost expenses, and damages on any and all manner of claims, demands, actions, and proceedings that may be instituted against the Company on the grounds alleging that said printing violates any copyright or any proprietary right of any person.
You certify that you own the rights to use the image(s) being reproduced on your order.
List Rental Terms
The DirectMail.com Web site and services are offered and made available by DirectMail.com, a division of DM Group (known herein as DirectMail.com). Through the DirectMail.com web site customers may order lists containing names, postal addresses, and/or phone numbers for consumers or businesses meeting the criteria selected by the customer ("List"). You ("Customer") must provide the information requested below and agree to the terms and conditions of this License Agreement ("Agreement") before ordering a List. DirectMail.com grants Customer, on the terms and conditions set forth herein, a limited, nonexclusive, nontransferable license to use the List obtained using the DirectMail.com Web site. Each List obtained may be used for the number of times specified and permitted by the DirectMail.com Web site and must be used within 30 days of delivery of the List to the Member area of the DirectMail.com Web site ("Delivery"). Experian Marketing Solutions, Inc. ("Experian") provides DirectMail.com with access to its proprietary data and certain Web site hosting services, enabling this DirectMail.com service. Experian shall be a third-party beneficiary to this Agreement.
Lists are delivered electronically to a secure area of the DirectMail.com Web site. DirectMail.com will notify Customer by email when Delivery has been made. The List will remain on the Web site for 30 days. Customer acknowledges that certain mechanical or software failures may render the Internet or email unavailable for periods of time without warning or, notice and DirectMail.com assumes no responsibility of any kind for any delays caused by such failures.
Payment is by credit card. Customer must enter their credit card information for each List purchase. Customer represents and warrants that it is an authorized user of the credit card information provided for each order submitted. DirectMail.com reserves the right to reject any order placed by Customer if the credit card information provided cannot be processed for any reason.
DirectMail.com WILL NOT issue refunds for mailing lists purchased through the Site. The mailing list purchased is provided to the customer and based on the specific criteria supplied by the customer. When Customer purchases a mailing list, Customer is bound to the list rental agreement. Termination of the agreement will only be authorized if the Company is at fault. This is to protect the interests of the Company and other customers of the Company.
USE AND RESTRICTIONS:
a) One Time Use, Permitted Uses: Unless permitted with the appropriate upcharge for two-time and/or multiple (three plus times) use through the DirectMail.com Web site, Customer is licensed to use, and certifies that it will use, the List provided by DirectMail.com for the number of uses permitted and only for one of the following purposes: i) direct mail solicitations, ii) conducting telephone solicitations, iii) conducting telephone surveys, or iv) direct mail surveys. This shall not, however, prevent Customer's use of the List for Customer's internal analysis or for previous mail suppression. Seed names may be included to detect unauthorized use.
b) Compliance with Guidelines and Laws: Customer acknowledges that different states and jurisdictions may have guidelines and laws affecting its use of the List and any information or data provided therein. It is Customer's responsibility to learn of such guidelines and laws, and comply with them. DirectMail.com, its data providers, and its affiliates, disclaim all responsibility for Customer's compliance with such guidelines and laws including any obligation to inform Customer about any restrictions on use of the List. Customer agrees that it will use the List provided under this Agreement in accordance with all Federal, state, and local laws, relevant Direct Marketing Association guidelines, and in a manner which gives due consideration to matters concerning privacy, confidentiality, good taste, and other issues to which individual and business consumers may be sensitive. Customer will not in any direct mail solicitation, telephone solicitation, or survey refer to any selection criteria or any presumed knowledge about the recipient, nor will Customer disclose the source of the recipient's name, address, or any other information. The List may not be merged or incorporated with any other file without the express written consent of Experian. The List, or any information or data provided therein, may not be used to enhance a file or list owned by any third party, to develop any list, enhancement, or product, or to prepare, publish, clean, or maintain any directory or look-up service.
c) Geographical Limitation: Customer represents and warrants that it will only use the List within the United States and its territories and will not use or transfer the List, or any information derived from the List, in whole or in part, outside the United States or its territories for any purpose.
d) Resale Prohibited: Customer represents and warrants that it will not resell, broker, or otherwise disclose the List to any third party, in whole or in part, for any purpose whatsoever. Customer agrees that it will not copy or otherwise reproduce the List, information or data provided except for back-up or security purposes. Under no circumstances will Customer attempt, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by DirectMail.com in preparing the List.
e) Audit: Customer will maintain current, accurate and complete books and records relating to its use of the List for a period at least twelve (12) months after each marketing communication. In addition to financial detail, Customer shall maintain a file of the latest twelve (12) months of communications, to include sample mail pieces, telemarketing scripts, ad copy, or other communications which Customer has used, and a list of each state to which the marketing communication has been made using the Lists. DirectMail.com or Experian, or any representative either designates, will have the right to examine and copy or make extracts from all such books and records and any source documents used in preparation thereof, at any time during normal business hours, provided DirectMail.com or Experian gives Customer written notice at least three (3) business days prior to any such examination.
f) FCRA: Customer understands that the information and data provided in the List 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 ("FCRA"), 15 USC § 1681a. Customer agrees that it shall not use any information or data from any List 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 authorized under Section 604 of the FCRA, 15 USC § 1681b or any similar statute.
DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY AGREES THAT USE OF THE LIST IS AT CUSTOMER'S SOLE RISK. THE LIST IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DirectMail.com AND EXPERIAN EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY. DirectMail.com AND EXPERAIN MAKE NO WARRANTY THAT THE LIST WILL MEET YOUR REQUIREMENTS, OR THAT DELIVERY OF THE LIST WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES DirectMail.com MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LIST, THE ACCURACY OR RELIABILITY OF ANY DATA, OR THAT DEFECTS IN THE LIST WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM DirectMail.com OR EXPERIAN, OR THROUGH THE SERVICES PROVIDED, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Customer acknowledges that certain laws, rules and regulations restrict telemarketing activities, including those that permit consumers to give notice that they do not wish to receive sales solicitation calls. Due to the varying and changing nature of such laws, rules and regulations, DirectMail.com makes no warranty that the names or telephone numbers of such individuals have been identified on or deleted from the List provided.
LIMITATION OF REMEDIES
DirectMail.com's and/or Experian's sole liability hereunder regardless of the form of action, will be the reperformance of the services or refunding of any fees Customer has paid for the List, as DirectMail.com or Experian may elect.
LIMITATION OF LIABILITY
NEITHER DirectMail.com NOR EXPERIAN SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE LIST, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF DirectMail.com OR EXPERIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DirectMail.com OR EXPERIAN, JOINTLY OR SEVERALLY, BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS RECEIVED FROM CUSTOMER.
Customer shall indemnify, defend and hold DirectMail.com and Experian harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including attorneys' fees) arising out or resulting from Customer's use of the List.
As between Customer and DirectMail.com, the List will continue to be the exclusive property of DirectMail.com. This transaction shall not be deemed to convey any right, title or interest, including patent, copyright or other proprietary right, in or to such List or any information or data therein.
DirectMail.com reserves the right to modify or discontinue the List Link Web site services at any time. The terms and conditions of this Agreement may be amended from time to time, and new use restrictions may be added, by DirectMail.com in its sole discretion. DirectMail.com will give notice of any changes in the terms and conditions. Placement of an order for a List constitutes acceptance of the new terms and conditions by Customer.
TERM AND TERMINATION
Placing of an order for a List, and/or use thereof, constitutes full acceptance of all of the terms and conditions contained herein. DirectMail.com reserves the right to terminate this Agreement immediately for cause, or to terminate this Agreement with or without cause upon 30 days notice to Customer. DirectMail.com shall not be liable to Customer for termination of this Agreement. Use of any List following termination will remain subject to all terms and conditions of this Agreement.
Experian hereby identifies as proprietary and confidential its various databases and the data contained within such databases as well as the methods utilized by Experian in gathering, compiling and maintaining such data and preparing the Lists. Customer will take reasonable precautions to assure that all confidential information disclosed to it by Experian is held in strict confidence and disclosed only to those of its respective employees whose duties reasonably require access to such information. Customer will take suitable precautions to prevent loss, compromise, or misuse of any media containing the List, or any data contained therein, while in the possession of either party. Except as required by law, Customer agrees that the List and any other information or data provided by Experian will be maintained in strict confidence and will not be copied, disclosed, sold or otherwise made available to any third parties. Customer shall provide for physical security of the List obtained from Experian with the same degree of care (provided that such is at least a reasonable degree of care) that Customer uses to protect its own most sensitive data. Customer shall not grant access to the List, and any other information or data provided by Experian, to individuals incarcerated in prisons or correctional institutions.
Customer acknowledges that Experian has expended substantial time, effort and funds to gather and compile its various databases and provide the Lists which are the subject of this Agreement and further acknowledges that, as between Customer and Experian, the data provided by Experian hereunder is, and shall remain, the proprietary property of Experian. Nothing contained in this Agreement shall be interpreted to convey to Customer or to any other party any right, title or interest in the Lists, including any patent, copyright or other proprietary right. Neither party will use, or permit their respective employees, agents and subcontractors to use, the trademarks, service marks, logos, names or any other proprietary designations of the other party, or the other party's affiliates, whether registered or unregistered, without such other party's prior written consent.
The parties will perform all services hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties. Neither this Agreement nor any provisions set forth herein is intended to, or shall, create any rights in or confer any benefits upon any person other than the parties hereto. This Agreement is binding upon and shall inure to the successors of each of the parties hereto. However, Customer shall not assign this Agreement without the express, written consent of DirectMail.com.
Neither party shall be liable for any delay or failure in its performance under this Agreement if and to the extent which such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, earthquakes, flood, epidemics, riots, and strikes. If a party becomes aware that such an event is likely to delay or prevent punctual performance of its own obligations, the party will promptly notify the other party and use its best effort to avoid or remove such causes of nonperformance and to complete the delayed job whenever such causes are removed.
This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of Illinois, which are intended to supersede any choice of laws or rules which might otherwise be applicable. Both parties consent to the jurisdiction of the courts of Illinois, whether Federal, state, or local with respect to any actions that arise out of or relate to this Agreement. The person accepting the terms and conditions of this Agreement represents and warrants that he or she has full authority to accept, and hereby does accept, the terms and conditions of the License Agreement on behalf of the individual and/or entity identified as customer.