1. Copy Delivery & Approval
Copy Delivery and Approval. Advertiser must deliver to Best ROI Lists (“Best ROI Lists”) the content of the advertisement Advertiser is contracting Best ROI Lists to broadcast (the “Copy”) no less than three (3) days prior to the desired email broadcast date. All Copy shall be subject to Best ROI Lists’s approval. Best ROI Lists reserves the right to reject any copy that advertises or promotes any product or “service” involving illegal activity, illegal products, illegal product paraphernalia, sexual paraphernalia, adult films or other media, gambling, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. By reserving this right, Best ROI Lists shall not be legally obligated for any failure to advise Advertiser of the nature of any such Copy. Further, no Pop Up’s or Pop Unders may be launched by Advertiser from any hypertext link or URL, which emanates from any copy.
2. Details of Broadcast
The email messages broadcast by Best ROI Lists shall identify the source of the recipient’s data collection and shall contain an opt-out feature that allows the recipient to electronically communicate his desire to be removed from the Best ROI Lists (or affiliate) database.
3. Hardware, Software and Database
Best ROI Lists shall obtain and maintain the computer hardware and software necessary to perform its obligations under these Terms and Conditions. Such hardware and software shall not be dedicated hardware or software. Nothing in these Terms and Conditions shall grant any right, title or interest in or to the Best ROI Lists (or affiliate) database, hardware or software.
Advertiser shall pay in full the fees charged by Best ROI Lists in the invoice. If Advertiser fails to pay the full amount of the charges detailed in any Best ROI Lists invoice within thirty (30) days of such invoice, the unpaid amounts of such invoice shall accrue interest at a rate of 18% per annum. Additionally, Advertiser agrees to pay all of Best ROI Lists’s cost of collection of such charges, including without limitation Best ROI Lists’s reasonable attorneys’ fees.
5. Late Fees
In addition to the terms described in Section 4, if Advertiser fails to pay the full amount of the charges detailed in any Best ROI Lists invoice within thirty (30) days of such invoice, Advertiser shall pay Best ROI Lists a Late Fee in the amount of 5% of the charges detailed in such Best ROI Lists invoice.
Advertiser shall indemnify, defend and hold harmless Best ROI Lists against all third party claims, actions and liabilities (including all reasonable costs, expenses and attorneys’ fees) arising from or in connection with (a) Advertiser’s product(s), services or the content of the Advertiser’s copy, including without limitation any claim alleging any violation of any third party’s intellectual property rights; or (b) Advertiser’s breach of any of its obligations, representations or warranties under these Terms and Conditions. Best ROI Lists shall promptly notify Advertiser in writing of all such claims and shall accommodate Advertiser’s reasonable requests for cooperation and information. Best ROI Lists uses a variety of data sources to fulfill email campaigns. We have one of the industries largest in-house opt-in email databases as well as several management and affiliate relationships with several premier permission based email marketers.
Best ROI Lists MAKES NO WARRANTY WHATSOEVER AS TO THE EMAIL ADVERTISEMENTS, EXPRESS OR IMPLIED. THIRD PARTIES PROVIDE THE EMAIL ADVERTISEMENTS ON AN “AS IS” BASIS. Best ROI Lists EXPRESSLY DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL Best ROI Lists BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE (INCLUDING LOST PROFITS). THE LIMIT OF Best ROI Lists’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THESE TERMS AND CONDITIONS SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID TO Best ROI Lists UNDER THE INVOICE.
9. Force Majeure
Neither party shall be liable for delays or nonperformance of these Terms and Conditions caused by strike, fire or accidents, nor shall either party be liable for delay or nonperformance caused by lack of availability of materials, fuel, or utilities, or for any other cause beyond its control.
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other party.
11. Relationship of the Parties
The parties are independent contracting entities, and there is no partnership or agency relationship between them.
12. Entire Agreement
Except as modified or supplemented by a writing executed by both parties, the Terms and Conditions described herein and in the attached invoice, incorporated by reference herein, are the only representations, warranties, and understandings between the parties with respect to the products and/or services described herein.
Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms and Conditions. The law of the State of Florida shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms and Conditions shall be Palm Beach County, Florida.
Should any provisions of these Terms and Conditions be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from these Terms and Conditions without affecting the validity or enforceability of any other provision.
The headings of these Terms and Conditions are for convenience only and shall not be used to construe the meaning of this Agreement.