1. SCOPE OF SERVICES. Letter Mail will furnish to Client the Services described in the Agreement, and if agreed, the Additional Services. Any quotes provided by Letter Mail will be honored for 15 days from the date of the quotation, except in the case of material costs, which have been calculated as of the date of the quote and is subject to revision should there be a change in material costs. Quotes are based on continuous and uninterrupted delivery of a complete order unless distinctly stated otherwise within the quote. All work performed in addition to the original specifications will be at Letter Mail’s current rates. Shipping charges not included in a quote unless specified.
2. DIRECT MAIL POLICY. If the Services include a direct mail campaign, Client will be provided with 1) an invoice detailing the specifics of the campaign including, but not limited to: quantity of mail pieces, type of envelope/packaging, type of postage, type of printing, and data criteria to be mailed; and 2) a final proof of the mail piece before it goes to print. Client can waive rights to proof for subsequent mailings of the same letter via written notice or email. Letter Mail will not move forward with a mail campaign until Client has carefully reviewed the invoice and final proof and given written approval to go to print. Approval to go to print must be given electronically for record keeping purposes. By giving approval to go to print, Client acknowledges that the invoice and proof have been carefully reviewed and accepts full responsibility for any errors that are discovered after the job has gone to print and/or been mailed. Claims for defects, damages or shortages must be made by Client in writing no later than three calendar days after verification by the USPS or receipt by Client. If no such claim is made, Client shall be deemed to have accepted the job, and Letter Mail shall have fully satisfied the order. Over-runs or under-runs will not exceed 10 percent of the quantity ordered. USD will bill for the actual quantity delivered within this tolerance. If the customer requires a guaranteed quantity, the percentage of tolerance must be stated at the time of the quotation. Title for all product belongs to Client upon removal from Letter Mail premises by any carrier. Letter Mail is not responsible for loss, damage or late delivery by USPS, or any carrier.
3. CLIENT SUBMITTED CONTENT. Client agrees that it will not include any text, image, design, trademark, service mark, or any copyrighted work of any third party in any content it submits or makes available to Letter Mail to be included in the Services (“Content”) unless it has obtained the appropriate authorizations from the owners. Client warrants that the Content does 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 it has all required rights or permissions necessary to incorporate third-party material into the Content. Client recognizes 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. Client further warrants that no copyright notice has been removed from the Content and certifies that it owns the rights to use any image(s) being reproduced as part of the Services. Client agrees that it will not cause Letter Mail to produce mailings as part of the Services that are offensive, unlawful, harassing, libelous, threatening, harmful, obscene, malicious or otherwise objectionable.
4. PAYMENT. Client shall compensate Letter Mail for the Services rendered in accordance with the payment terms detailed in the Agreement. Unless otherwise set forth in the Agreement, payment for the Services rendered shall be paid to Letter Mail in advance, prior to the job going to print. Client shall reimburse Letter Mail for any fees and/or costs incurred by Letter Mail in connection with any returned checks or improperly disputed credit card charges for Services within five (5) days following Letter Mail’s request therefor. Invoices not paid when due will be subject to a late charge at the rate of 10% per annum. Sales tax will be added to customer’s invoice where applicable.
5. TERM AND TERMINATION. The term of this Agreement will commence on the Effective Date, and shall continue until terminated in accordance with the terms hereof (“Term”). Either party may terminate this Agreement at any time, for any reason or no reason, upon not less than 10 days written notice. In the event of termination prior to completion of the Services specified in any invoice, Letter Mail shall be paid for all Services properly performed through the date of termination in accordance with this Agreement and such invoice and any non-cancellable commitments incurred by Letter Mail in accordance with this Agreement and such invoice. Letter Mail may suspend its performance or terminate this Agreement if Client materially breaches this Agreement. The termination or completion of any mailing job or invoice shall not operate to terminate this Agreement.
6. LIST RENTAL TERMS. As part of the Services, Client may order lists containing names, postal addresses, and/or phone numbers for consumers or businesses (“List”). Letter Mail grants Client, on the terms and conditions set forth herein, a limited, nonexclusive, nontransferable license to use the Lists obtained pursuant to this Agreement. Each List obtained may be used for the number of times specified and permitted in the Agreement. Lists are delivered electronically by email or to a secure area online.
6.1. Permitted Uses. Client is licensed to use, and certifies that it will use, the List provided by Letter Mail for the type and number of uses permitted as specified in the Agreement. Seed names may be included in the List to detect unauthorized use by Client.
6.2. Compliance with Guidelines and Laws. Client 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 Client’s responsibility to learn of such guidelines and laws, and comply with them. Letter Mail, its data providers, and its affiliates, disclaim all responsibility for Client’s compliance with such guidelines and laws including any obligation to inform Client about any restrictions on use of the List. Client agrees that it will use the List and any other Services provided under this Agreement in accordance with all Federal, state, and local laws, 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. Client 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 Client 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 Letter Mail. 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.
6.3. Geographical Limitation. Client 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.
6.4. Resale Prohibited. Client 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. Client agrees that it will not copy or otherwise reproduce the List, or related information or data provided. Under no circumstances will Client attempt, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Letter Mail in preparing the List.
6.5. FCRA. Client 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. Client 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.
6.6. Audit. Client 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, Client 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 Client has used, and a list of each state to which the marketing communication has been made using the Lists. Letter Mail, or any representative it 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 Letter Mail gives Client written notice at least three (3) business days prior to any such examination.
7. REPRESENTATIONS AND WARRANTIES. LETTER MAIL WARRANTS THAT THE SERVICES SHALL MATERIALLY CONFORM TO THE APPROVED SPECIFICATIONS CONTAINED IN THE APPLICABLE QUOTATION, AND LETTER MAIL SHALL NOT BE RESPONSIBLE FOR IMMATERIAL DEFECTS OR ERRORS. Client and Letter Mail each represent and warrant to the other that it is and shall remain properly licensed to perform all aspects of its business in accordance with and will comply with any and all applicable federal, state and local laws, rules and regulations including, without limitation, Gramm-Leach Bliley, FTC “Do Not Call” and CAN-SPAM Act laws. Client covenants and agrees to comply with all removal notifications that Letter Mail sends to Client on behalf of consumers.
8. CONFIDENTIAL INFORMATION. Letter Mail hereby identifies as proprietary and confidential its various databases and the data contained within such databases as well as the methods utilized by Letter Mail in gathering, compiling and maintaining such data and preparing the Lists. Client will take reasonable precautions to assure that all confidential information disclosed to it by Letter Mail is held in strict confidence and disclosed only to those of its respective employees whose duties reasonably require access to such information. Client 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, Client agrees that the List and any other information or data provided by Letter Mail will be maintained in strict confidence and will not be copied, disclosed, sold or otherwise made available to any third parties. Client shall provide for physical security of the List obtained from Letter Mail with the same degree of care (provided that such is at least a reasonable degree of care) that Client uses to protect its own most sensitive data. Client shall not grant access to the List, and any other information or data provided by Letter Mail, to individuals incarcerated in prisons or correctional institutions.
9. OWNERSHIP. Client acknowledges that Letter Mail has expended substantial time, effort and funds to gather and compile its various databases and provide the Lists which are part of the Services and further acknowledges that, as between Client and Letter Mail, the data provided by Letter Mail hereunder is, and shall remain, the proprietary property of Letter Mail. Nothing contained in this Agreement shall be interpreted to convey to Client or to any other party any right, title or interest in the Lists or any information or data therein, 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.
10. DISCLAIMER OF WARRANTIES. CLIENT EXPRESSLY AGREES THAT USE OF THE LIST IS AT CLIENT’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LETTER MAIL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND THAT ARE NOT EXPRESSLY STATED IN THIS AGREEMENT, 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. LETTER MAIL MAKES NO WARRANTY THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, OR THAT DELIVERY OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES LETTER MAIL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE ACCURACY OR RELIABILITY OF ANY DATA, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM LETTER MAIL, OR THROUGH THE SERVICES PROVIDED, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Client 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, Letter Mail makes no warranty that the names or telephone numbers of such individuals have been identified on or deleted from the List provided.
11. LIMITATION OF LIABILTY In no event shall Letter Mail be liable to Client or any other person or entity for any delays, inaccuracies, errors or omissions with respect to any information, services, product, policies or actions, or the transmission or delivery of all or any part thereof to Client, for any damage arising therefrom or occasion thereby, or for the result obtained from its use; or in the event any information transmitted or delivered infects or contaminates any user’s system or information. IN NO EVENT WILL LETTER MAIL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES ARISING UNDER THIS AGREEMENT OR RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICES, 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 LETTER MAIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL LETTER MAIL BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS RECEIVED FROM CLIENT FOR THE SERVICES RENDERED IN CONNECTION WITH SPECIFIC PRODUCTION ORDER IN QUESTION.
12. INDEMNITY. Client shall indemnify and hold harmless Letter Mail from and against all liability for damages, loss, costs, expenses, and attorneys’ fees, incurred by Letter Mail and/or its members, managers and employees, agents, servants, attorneys, representatives and affiliates, arising from, or alleging to arise from, any direct mail approved by the Client, the Content (including any claims that the Content infringes the proprietary rights of any person), Client’s use of the Lists and/or any breach or violation of this Agreement by Client.
13. RELATIONSHIP. 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 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, Client shall not assign this Agreement without the express, written consent of Letter Mail.
14. FORCE MAJEURE. 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.
15. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, including this Exhibit A, shall constitute the entire agreement and understanding between the parties and supersedes all prior agreements representations and understandings between the parties. This Agreement may not be modified or varied in any way except where such amendment or variation is in writing and signed by both parties.
16. MISCELLANEOUS. All notices, requests, demands or communications required or permitted hereunder shall be in writing, delivered personally, by email, or mailed by first class mail, postage prepaid, addressed to the parties as set forth above or at such other address as shall be specified in writing by either of the parties to the other in accordance with this paragraph. All notices, requests, demands or communications shall be deemed effective upon personal delivery or, in the case of email, when transmitted as evidenced by the confirmation of transmission, or four (4) days following deposit in the U.S. mail in accordance with this paragraph. If any provision of this Agreement is adjudicated by a court or tribunal of competent jurisdiction to be void and unenforceable, the same shall in no way affect any other provision of this Agreement and/or the validity or enforceability of this Agreement as a whole. This Agreement may be supplemented, amended or modified only by mutual written agreement of the parties. No waiver of a breach, failure of any condition or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure right or remedy shall be deemed a waiver of any other breach, failure, right or remedy whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. This Agreement is executed and delivered in and shall be governed by and construed in accordance with the laws of the State of California. Any disputes under this Agreement may be brought in the state courts and the Federal courts of Orange County, California, and the parties hereby consent to the personal jurisdiction and non-exclusive venue of these courts. In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys’ fees, and costs.